A man's state of mind is hard enough for him to know,
much less for others to prove without his help.(2)

Table of Contents

Introduction

I. Historical Background

A.
Common Law

B.
Non Common Law Jurisdictions

C.
Mississippi Statutory Treatments of Murder

1. Mississippi Territory 1798-1817

2. Early State Legislation 1817-1824

3. The Penitentiary Code of 1839: Root Current
Homicide Statutes

4. Consolidation and Simplification (1857)

From "premeditated design" to "deliberate design"

Felony murder and felony manslaughter

Elimination of degrees of manslaughter

Resurrection of malice

5. Modern Adjustments

Capital murder

Causing death of fetus

Aggravated DUI

6. Summary: Unintended Killings Under the

Current Code

Capital murder

Murder

Manslaughter

Aggravated DUI

II. Unintentional Criminal Homicide in Other

Jurisdictions

A. States and Federal Government

B. Model Penal Code

1. Murder

2. Manslaughter

3. Negligent homicide

4. Summary

III. Mens Rea for Unintentional Murder and

Manslaughter

A. Depraved Heart Murder

1. Language of the Statute

Eminently dangerous

Intent to kill

Malice

Dangerous to others

Depraved heart regardless of human life

2. Cases

Killings with deadly weapons

Killings without deadly weapons

B. Culpable Negligence Manslaughter

1. Language of the Statute

2. Judicial Elaboration

3. Cases

Motor vehicle fatalities

Simple assault

Aggravated assault and killings with deadly

weapons

Culpable omissions

Other unlawful acts

IV. The Confusion of Mens Rea for Murder and

Manslaughter

A. Inconsistent Evaluations of Evidence

B. Inconsistent Law Governing Instructions

Conclusion

A. Statutory Reform

B. Judicial Clarification

IntroductionMississippi law classifies certain unintentional killings
as capital murder,(3) murder,(4)
and manslaughter.(5) It also imposes severe
criminal sanctions on persons driving under the influence of intoxicating
liquor or drugs who kill under circumstances that do not require intent.(6)
But Mississippi law is confusing in its treatment of the culpable mental
states that distinguish these different forms of criminal homicide. The
elements required by statute are not obvious; appellate cases conflict
regarding theadequacy of evidence to support convictions; and the law on
jury instructions is inconsistent.

This article discusses the law of unintentional homicide
in Mississippi. It also considers the law governing intended killings to
the extent legal definitions of intent illuminate the requirements for
unintended killings. It does not, however, separately consider capital
murder or murder liability for unintended killings committed during the
commission of or attempt to commit felonies.(7)
Nor does it separately consider capital murder or murder liability that
results under the doctrine of transferred intent--that is, when an unintended
victim dies as the result of the attempted murder of another.(8)

Because there is little published scholarship on Mississippi
homicide law, Part I examines the history of murder and manslaughter in
Mississippi. Part II compares the treatment of unintentional criminal homicide
in Mississippi with that in other jurisdictions. Part III analyzes the
culpable mental states required for unintentional murder and manslaughter
in Mississippi. Part IV explores conflicts and inconsistencies in cases
evaluating the sufficiency of evidence and the need for jury instructions.
The conclusion suggests possible legislative and judicial solutions to
the present confusing and inequitable state of the law.

I. Historical Background

A. Common Law

William Blackstone defined murder
in the eighteenth century as occurring "when a person of sound memory and
discretion, unlawfully killeth any reasonable creature in being and under
the king's peace, with malice aforethought, either express or implied."(9)
As Blackstone recognized, malice provided the mental element that distinguished
murder from other homicide crimes and from noncriminal homicide:

This [malice aforethought] is the grand criterion which
now distinguishes murder from other killing: and this malice prepense,
malitia
praecogitata, is not so properly spite or malevolence to the deceased
in particular, as any evil design in general; the dictate of a wicked,
depraved, and malignant heart:
un disposition a faire un mal chose
[an inclination to do an evil thing]: and it may be either
express,
or implied in law.(10) Some scholars
believe malice aforethought originally meant a preconceived design to kill.(11)
They speculate that the distinction between express and implied malice
evolved as courts extended murder liability from intended to unintended
killings.(12) In some statutory schemes
express malice is likewise defined as an intent to kill.(13)
But malice aforethought probably did not originally mean premeditation.(14)
After the Norman Conquest, the king's common law courts assumed jurisdiction
over all homicides, and the malice aforethought required for murder acquired
its distinct meanings as the courts distinguished murder from homicides
resulting from the sudden fights and provocation that became classified
as manslaughter.(15) Accordingly, malice
aforethought probably required not a goal-directed intent to kill so much
as a preexisting hostility to the victim.(16)

As late as Blackstone, the distinction between express
and implied malice related more to the objective evidence of motivation
of ill will directed toward the particular victim.(17)
A cold-blooded or premeditated killing certainly provides an example of
express malice, but the examples Blackstone chose were more nuanced. His
examples of express malice included duels and killings in response to a
sudden provocation where the killer beat the victim in a cruel and unusual
manner but did not necessarily mean to cause the victim's death.(18)
These examples share the feature that death occurred in contexts where
the killer's hostility was transparent or notorious, and the hostility
motivated the fatal assault on the victim. For Blackstone express malice
also included killings that demonstrated a general animosity to all humans.(19)
As examples he cited a killer who "coolly discharg[ed] a gun among a multitude
of people" and conspirators who agreed to engage in a violent offense "of
which the probable consequence might be bloodshed"(20)
but not necessarily death. Express malice in these contexts included "an
express evil design, the genuine sense of malitia."(21)

Implied malice, in contrast, included deliberate killings
where no additional evidence of hostile motive was present.(22)
This distinction between express and implied malice derived from Coke who
had explained malice prepense as existing "when one compasseth to kill,
wound, or beat another, and doth it sedata animo."(23)
Coke had also observed that malice was implied when one killed "without
any provocation on the part of him, that is slain,"(24)
though Coke's understanding of implied malice evidently did not include
acts of extreme recklessness.(25) Hale
followed Coke,(26) and Blackstone followed
both in defining implied malice to include a killing that occurred suddenly
and in the absence of any other evidence of particular ill will: "And if
a man kills another suddenly, without any, or without a considerable, provocation,
the law implies malice; for no person, unless of an abandoned heart, would
be guilty of such an act, upon a slight or no apparent cause."(27)
Thus for Blackstone implied malice was a residual category. It covered
all murders that were not accompanied by express malice, and it also provided
the theoretical justification for the doctrines of felony murder and transferred
intent.(28)

From the cases Blackstone derived "a general rule, that
all homicide is malicious, and, of course, amounts to murder, unless where
justified
by the command or permission of the law; excused on the account
of accident or self-preservation; or alleviated [mitigated] into
manslaughter."(29) He also posited a broad
evidentiary presumption: "For all homicide is presumed to be malicious,
until the contrary appeareth upon evidence."(30)

Applied literally, Blackstone's presumption would have
reduced the law of murder to a series of special defenses to strict criminal
liability for homicide, and the common law never adopted such an approach.(31)
But this presumption revealed that Blackstone's principal concern was to
elaborate the analytic process by which common law courts arrived at a
conclusion of malice aforethought. By doing so, Blackstone articulated
an essentially procedural and evidentiary dilemma with which common law
jurisdictions continue to struggle: on the one hand, the law demands proof
of a culpable mental state; on the other hand, the mental state must often
be inferred from the act of killing.(32)
In response to this dilemma, statutes have occasionally criminalized homicides
committed with certain instrumentalities,(33)
and cases have recognized a presumption of malice when certain weapons
are used.(34)

Notwithstanding the multiple, indeterminate associations
of malice aforethought in the nineteenth century,(35)
academic authorities today tend to treat "malice" as terminology adopted
by courts as a post hoc rationalization for punishing a variety of mental
states as murder. For over a century scholars have reduced malice aforethought
to four different mental states accompanying the conduct that results in
death: 1) intent to kill, 2) intent to inflict serious bodily injury, 3)
extremely reckless disregard for the value of human life, and 4) felony
murder.(36)

Mississippi and other American jurisdictions inherited
the common law conception of malice in the form it had taken in the eighteenth
and nineteenth centuries. By that time malice had come to include unintended
killings resulting from both aggressive acts towards individuals and from
extremely reckless conduct more generally. In contrast, England in the
last century abolished murder liability for unintended killings. In the
1950s, as part of a searching reexamination of criminal laws, the Royal
Commission on Capital Punishment and law reform committees concluded that
"persons ought not to be punished for consequences of their acts which
they did not intend or foresee."(37) Felony
murder was abolished in England in 1957.(38)
The English courts ultimately restricted liability for unintended killings
to situations where the defendant knew that death was a highly probable
result; and they abandoned even that form of culpability for murder in
1985.(39) Today English law accepts only
two culpable mental states for murder: "an intent to kill, or an intent
to cause grievous bodily harm."(40)

B. Non Common Law Jurisdictions

Jurisdictions outside the common law tradition are divided
over whether to classify reprehensible, unintended killings among their
most serious form of criminal homicide. A few countries explicitly make
some form of extreme recklessness sufficient to establish liability for
their most serious form of criminal homicide.(41)
Most others rank unintended killings as a lower form of homicide.(42)

C. Mississippi Statutory Treatments of Murder

1. Mississippi Territory 1798-1817

Federal legislation establishing the Mississippi Territory
(which comprised the land that would constitute the states of Alabama and
Mississippi) provided that its government be "similar to that which is
now exercised in the Territory northwest of the Ohio" except that slavery
was not prohibited.(43) The Northwest Ordinance
had provided for a governor and three judges and had given the governor
and a majority of the judges the power to "adopt and publish in the district
such laws of the original States, criminal and civil, as may be necessary,
and best suited to the circumstances of the district."(44)

The governor and judges of the Mississippi Territory began
to adopt laws in January 1799.(45) The
first laws published in 1799 to 1800, eventually known as Sargent's
Code, contained criminal provisions dealing with treason, murder, manslaughter,
arson, burglary, robbery, riots, perjury, larceny, forgery, fraud, mayhem,
usurpation, and battery.(46)

The code's definition of murder incorporated the common
law requirement of malice aforethought: "If any person or persons, shall
with malice aforethought, kill or slay another person, he, she or they
so offending, shall be deemed guilty of murder, and upon conviction thereof,
shall suffer the pains of death."(47) It
did not further define "malice aforethought." It appears, however, that
the drafters did not assume that malice aforethought was automatically
established by killings perpetrated during the commission of or attempt
to commit felonies, for they separately provided for murder liability for
deaths occurring during particularly violent forms of burglary(48)
and robbery(49) but for no other crimes.

The first statutory definition of manslaughter likewise
tracked the common law on involuntary manslaughter: "If any person or persons,
shall wilfully kill or slay another person, without malice aforethought;
he she or they so offending, shall be deemed guilty of manslaughter; and
upon conviction thereof, shall be punished as at the common law, hath heretofore
been used and accustomed."(50)

By 1807 the Territory was operating with a territorial
legislature, which adopted new criminal statutes that prohibited "wilful
murder" without defining the elements of that offense.(51)
Survivors of duels that resulted in death were also guilty of wilful murder.(52)
The difference between murder and manslaughter was widened in 1814 when
a statute authorized juries to sentence persons convicted of manslaughter
to no more than one year in prison and to impose a fine of no more than
five hundred dollars.(53)

2. Early State Legislation 1817-1824

In 1817 Mississippi gained statehood, and in 1820 the
state legislature adopted comprehensive criminal legislation that retained
the death penalty for murder. The statute referred to the crime simply
as "murder"(54) rather than "wilful murder."
The legislature preserved the wide gap between the punishments for murder
and manslaughter, prescribing that persons convicted of manslaughter be
fined and branded on the hand with the letter M.(55)

There was dissatisfaction with the state's criminal laws,
because two years later the legislature enacted a series of additional
homicide statutes. Poison was a particular concern, and principals and
aiders and abettors who committed "wilful killing by poisoning" were made
guilty of "wilful murder."(56) Following
an old English statute,(57) unprovoked
stabbing-killings were made wilful murder.(58)
Survivors of fatal duels and aiders and abettors were guilty of murder.(59)
The courts early assumed that legislative references to "murder" imported
the common law element of malice aforethought.(60)

Legislation in 1822 restated verbatim the existing murder
statute.(61) But lawmakers now thought
branding was insufficient punishment for manslaughter, for while they copied
most of the 1820 manslaughter statute, they added authority for the trial
judge to impose a prison sentence at his discretion.(62)
Moreover, in a separate statute they provided that persons who committed
manslaughter a second time were to be sentenced to death.(63)
Responding to a problem raised in common law treatises,(64)
they provided that perjury committed with the purpose of causing death
should be treated as murder when death resulted.(65)
Lawmakers also enacted defenses requiring a special verdict for specific
types of excusable homicide encompassing self defense and misfortune(66)
and for types of justifiable homicide encompassing law enforcement, defense
of others, and lawfully chastising a child or servant.(67)

3. The Penitentiary Code of 1839: Roots of Current

Homicide Statutes

In 1839 the legislature enacted a new criminal code.(68)
Running nearly one hundred pages in the session laws, the topics included
criminal procedure, rights of defendants, substantive criminal law, and
rules and regulations for the penitentiary. Crimes were organized under
seven titles according to the type and seriousness of offenses:

Crimes punishable by death

Offenses against persons punished as felonies

Offenses against property punished as felonies

Offenses affecting the administration of justice punished
as felonies

Offenses against the right of suffrage

Offenses against public peace and morals punished as felonies

Offenses punished by jail sentence or fine

Although the preamble explained that the purpose of the
legislation was to consolidate, simplify, amplify, and rearrange existing
criminal statutes,(69) the new penal code
effected the most radical revision of Mississippi criminal law in the state's
history.

Copied from the New York Code of 1829,(70)
the Mississippi Penal Code of 1839 reflected a new conceptual approach
that valued rules of general application. The code thus removed special
provisions for stabbing and poisoning, declaring: "The killing of a human
being, without the authority of law, by poisoning, shooting, stabbing,
or any other means, or in any other manner, is either murder, manslaughter,
or excusable or justifiable homicide, according to the facts and circumstances
of each case."(71) Where older statutes
had referred simply to the crime of murder, the new code provided working
definitions of the elements of offenses and sought to avoid technical terminology.
The code eliminated the word "malice" from definitions of both murder and
manslaughter.(72) This yielded a new formulation
for murder that has been retained with modifications down to the present:

Such killing, unless it be manslaughter or excusable or
justifiable homicide, as hereinafter provided, shall be murder in the following
cases:

1. When perpetrated from a premeditated design to effect
the death of the person killed, or of any human being;

2. When perpetrated by an act eminently dangerous to others,
and evincing a depraved mind, regardless of human life, although without
any premeditated design to effect the death of any particular individual;

3. When perpetrated, without any design to effect death,
by a person engaged in the commission of a felony.(73)The
first section was probably designed to cover cases of express malice. The
second section covered cases of implied malice. The third section codified
the doctrine of felony murder. The statute's broad definitions eliminated
the need for additional statutes declaring killings by dueling to be murder,
though a possible jurisdictional defense was removed by providing that
it was murder for a resident to agree to fight a duel out of state when
the victim died in Mississippi.(74)

The Penal Code of 1839 amplified previous efforts to define
the residual categories of homicide. Any killing by "act, procurement,
or omission" that did not qualify as murder was "either justifiable or
excusable homicide, or manslaughter."(75)
Justifiable homicide was defined to include public acts of law enforcement.(76)
Justifiable homicide also extended to acts of private persons resisting
murders or felonies,(77) defending themselves
and certain third persons,(78) and arresting
felons, suppressing riots, and keeping the peace.(79)

Excusable homicide included two categories. The first,
corresponding to the common law defense of accident and misfortune, applied
where death resulted unintentionally from lawful acts.(80)
The second applied to provoked, heat-of-passion killings and to affrays
or sudden combats.(81) This second category
effected a radical, and perhaps unintended, change from the common law
that may have resulted from a misreading of Blackstone. In discussing express
malice, Blackstone had written that "if even upon a sudden provocation
one beats another in a cruel and unusual manner, so that he dies, though
he did not intend his death, yet he is guilty of murder by express malice."(82)
Blackstone meant to explain that a particularly heinous method of killing
in response to provocation could display sufficient evil motive to qualify
as malice. This explanation was necessary because at common law, absent
such malice, the unlawful killing would be manslaughter, not excusable
homicide. It is possible the drafters, reading Blackstone's explanation
in isolation, may have misunderstood him to require such a cruel and unusual
method of killing for homicide liability in general. Conversely, they may
have misunderstood him to imply that the absence of such methods constituted
excusable homicide.

Perhaps, however, the original drafters in New York just
thought the common law rule was too harsh. In any event, they generously
extended excusable homicide to hot-blooded provoked and sudden combat killings
but only when no undue advantage was taken, no dangerous weapon was used,
and no cruel or unusual manner was employed. These requirements for excuse
in turn led to the addition of two special forms of voluntary manslaughter.
The first required a "cruel and unusual" manner of killing: "The killing
of a human being, without a design to effect death, in a heat of passion,
but in a cruel and unusual manner, unless it be committed under circumstances
as to constitute excusable or justifiable homicide, shall be deemed manslaughter
in the second degree."(83) The second required
a dangerous weapon: "The killing of another, in the heat of passion, without
a design to effect death, by a dangerous weapon, in any case except such
wherein the killing of another is herein declared to be justifiable or
excusable, shall be deemed manslaughter in the third degree."(84)
The common requirement of both forms of manslaughter, that the killing
be "without a design to effect death," was ambiguous. The absence of design
might have signified merely that the killer did not have to have a general
intent to kill.(85) But more likely, it
meant the absence of a specific intent to kill in cold blood or with deliberation,
because killings with "premeditated design" were defined as murder. In
other words, premeditated design and "heat of passion" were originally
understood as mutually exclusive.(86)

While all killings with premeditated design were murder,
heat-of-passion and sudden combat killings were graded according to the
method of death or the instrumentality employed. When they occurred with
neither undue advantage, nor weapon, nor in cruel or unusual manner, they
were excused. When they were not excusable but occurred without a weapon
by means neither cruel nor unusual, they were fourth degree manslaughter,
punished by imprisonment up to two years. When they occurred in a cruel
and unusual manner, they were second degree manslaughter, punished by imprisonment
from four to seven years. When they occurred with a dangerous weapon, they
were third degree manslaughter, punished by imprisonment from two to four
years.(87)

The Penal Code of 1839 added other forms of manslaughter.
Particularly confusing was the form of manslaughter committed during a
crime or misdemeanor:

The killing of a human being, without a design to effect
death, by the act, procurement, or culpable negligence, of any other, while
such other is engaged--

1. In the perpetration of any crime or misdemeanor not
amounting to felony: or,

2. In the attempt to perpetrate any crime or misdemeanor,

--in cases where such killing would be murder at common
law, shall be deemed manslaughter in the first degree.(88)This
seemed on its face to codify misdemeanor-manslaughter. Indeed, New York
courts so construed the New York model for this statute.(89)
Nevertheless, perhaps because the statute appeared to mitigate what would
have been murder liability,(90) the statute
was read to impose liability for killings of, rather than by, misdemeanants.(91)
On the one hand, this interpretation may have resulted from careless reading
of a poorly drafted statute. On the other hand, it may have actually expressed
the legislature's purpose. The deliberate killing of innocent victims was
murder, and the deliberate killing of felons was justifiable homicide under
certain circumstances. So the drafters may have meant to fill a gap between
the killing of innocent victims and felons by classifying the killing of
persons committing misdemeanors and attempts as manslaughter. A similar
construction was given to another statute that imposed manslaughter liability
on trespassers who "involuntarily" killed, and the language of this statute
was later altered to impose liability on the killing of trespassers.(92)
Over time, the manslaughter statute prohibiting killings by (or of) misdemeanants
metamorphosed into today's misdemeanor manslaughter statute.(93)

The most likely explanation, and the simplest, is that
the legislature originally meant to criminalize culpable negligence manslaughters
committed during misdemeanors and trespasses. It enacted separate statutes
for those killings in order to punish them more severely. (They ranked
as first and third degree manslaughter). But according to this explanation,
the statutes became redundant when degrees of manslaughter were eliminated
in 1857(94) as all killings with culpable
negligence were already manslaughter. Nevertheless, the statutes were not
repealed, and unwary prosecutors stumbled over them, and courts, revisers,
and legislators searched them assuming there was some reason for their
existence.

The 1839 Code also provided that the killing of a felon
was manslaughter under certain circumstances.(95)
At common law, a person who killed an assailant, but who was the initial
aggressor or employed unreasonable or unnecessary force in self defense,
was not entitled to a defense of excusable homicide; however, his or her
criminal liability was mitigated to manslaughter under the theory of imperfect
self defense.(96) The 1839 Code offered
a comparable mitigation to those who killed a felon where the homicide
was not excusable--such as when the killing was not necessary or when the
victim had ceased committing or attempting to commit the felony.(97)

Other manslaughter statutes criminalized assisted suicide,(98)
killing unborn quick children,(99) and
willfully allowing dangerous animals to go at large with knowledge of their
dangerous propensities.(100)

Shipping disasters motivated a manslaughter statute that
criminalized wilfully or negligently overloading boats for profit.(101)
The horrors of steamboat explosions led to manslaughter liability for captains,
pilots, and engineers of steamboats who caused death by allowing too much
pressure in boilers from ignorance or neglect or for the purpose of racing
another boat.(102) Deaths caused by drunken
physicians were also punished as manslaughter.(103)

The catchall manslaughter statute covered all other unexcused
and unjustified homicides that were not murder: "Every other killing of
a human being, by the act, procurement, or culpable negligence of another,
when such killing is not justified or excusable, or is not declared in
this act murder, or in this title manslaughter of some other degree, shall
be deemed manslaughter in the fourth degree."(104)

4. Consolidation and Simplification (1857)

The growing number of statutes and cases together with
the complexities of practice before the numerous state courts led the legislature
in 1854 to propose a complete revision of the code. It authorized the justices
of the High Court of Errors and Appeals to appoint three commissioners
"to revise, digest, and codify the laws of this state, and to propose such
alterations or amendments thereof, and such new laws, as they may deem
expedient."(105)

The resulting Revised Code of Mississippi of 1857 radically
altered the presentation of laws. Statutes were grouped by topic, and topics
were arranged alphabetically. Thus within the chapter "Crimes and Misdemeanors,"
all murder and manslaughter statutes fell under the rubric "homicide,"
and "homicide" fell alphabetically between "highways" and "incest." This
cumbersome method of organization, popular with nineteenth-century treatise
writers, was preserved by all subsequent codes until 1972.

The 1857 recodification resulted in several important,
lasting changes to the content of the homicide statutes.(106)

From "premeditated design" to "deliberate design."
The operative definition of intentional murder was revised:

The killing of a human being, without the authority of
law, by any means, or in any manner, shall be murder in the following cases:--

When done with deliberate design to effect the
death of the person killed, or of any human being:

When done in the commission of an act eminently dangerous
to others, and evincing a depraved heart, regardless of human life, although
without any premeditated design to effect the death of any particular individual.(107)The
reason for substituting "deliberate design" for "premeditated design" is
not obvious, and the failure to repeat the substitution in the following
paragraph obscured the dichotomy originally established between the first
form of murder and the other two.

Felony murder and felony manslaughter. Felony murder,
the third category of murder, was significantly reduced in scope in 1857.
Under prior law any killing without design during the commission of a felony
qualified as murder without regard to the kind of felony.(108)
In revising the code, the legislature limited murder liability to those
felons who caused death while committing or attempting to commit only certain
of the most serious felonies: "[Killing is murder] [w]hen done without
any design to effect death, by any person engaged in the commission of
the crime of rape, burglary, arson, or robbery, or in any attempt to commit
such felonies."(109) The predicate felonies
corresponded roughly to the most serious crimes. Arson under certain circumstances
was itself a capital crime.(110) Rape
was punishable by life imprisonment.(111)
Although forgery, like burglary, was punishable by up to fifteen years
in prison,(112) and kidnapping, like robbery,
up to ten years in prison,(113) forgery
and kidnapping were not included as predicate felonies under the statute.(114)

The exclusion of other felonies from the list must have
been perceived as creating a gap, for the legislature simultaneously enacted
a new manslaughter statute:

The killing of a human being, without malice, by the act,
procurement, or culpable negligence of another, while such other is engaged
in the perpetration of any felony, except rape, burglary, arson, or robbery,
or while such other is attempting to commit any felony, besides such as
are above enumerated and excepted, shall be deemed manslaughter . . . .(115)This
statute copied the manslaughter statute that had either imposed misdemeanor
manslaughter liability or mitigated liability for killing a misdemeanant
from murder to manslaughter.(116) The
new felony manslaughter statute was joined to that statute in the code.(117)
Accordingly, the meaning of the new statute depends on the meaning its
precursor was understood to have in 1857. If the codifiers understood the
model to incorporate the doctrine of misdemeanor manslaughter, then the
new statute plainly meant to provide a form of felony manslaughter liability
for deaths caused during the commission of or the attempt to commit those
felonies not listed in the felony murder statute.

As amended, the statute added the general requirement
that the killing occur "without malice" during the commission of a felony.(118)
This addition confused the probable meaning of the statute because at common
law homicide committed during the commission of the felony established
malice.(119) Indeed, the meaning of these
statutes continued to baffle codifiers and courts for over a century.(120)

Elimination of degrees of manslaughter. The 1857
revision eliminated the four different degrees of manslaughter established
by the Penitentiary Code of 1839. All forms of manslaughter were now governed
by the same penalty: "Any person convicted of manslaughter, shall be fined
in a sum not less than five hundred dollars, or imprisoned in the county
jail not more than one year, or in the penitentiary not less than two years."(121)
Because the statute contained no minimum sentence, the trial judge could
impose any sentence ranging from a fine up to life imprisonment.(122)

Resurrection of malice. The 1839 laws had avoided
the term "malice" in defining both murder and manslaughter.(123)
Although the 1857 Code did not restore malice to the definition of murder,
it did add the requirement of "without malice" to the new manslaughter
statute.(124) It also amended two other
manslaughter statutes to substitute the requirement of "without malice"
for the previous requirement of "without design."(125)
The misdemeanor manslaughter statute was altered to require the homicide
be "without malice."(126) This alteration
was made, perhaps, to distinguish intentional and hot-blooded killings
that qualified as manslaughter from "deliberate design" murder.(127)
Likewise, the general involuntary manslaughter statute was amended to substitute
lack of "malice" for lack of "design": "The killing of a human being, without
malice, in the heat of passion, but in a cruel or unusual manner, without
authority of law, and not in necessary self-defence, shall be deemed manslaughter."(128)
A similar change was made for involuntary manslaughter committed by use
of a dangerous weapon: "The killing of another in the heat of passion,
without malice, by the use of a dangerous weapon, without authority of
law, and not in necessary self-defence, shall be deemed manslaughter."(129)
None of the other manslaughter statutes with culpable mental states, which
included "deliberately assisting," "wilful killing," "involuntarily killing,"
and "culpable negligence," were similarly altered to require lack of malice.(130)

Although malice was not added to the statutory definition
of murder, the old common law idea that murder required malice, and manslaughter
its absence, proved tenacious. Edward Mayes, Dean and Professor at the
University of Mississippi School of Law, taught his students: "Murder is
the unlawful killing of a human being with malice aforethought, including
duels. Manslaughter is the unlawful killing of a human being without malice."(131)
In a series of opinions the supreme court maintained that the statutory
requirements of "premeditated design" and "deliberate design" meant "express
malice" and a "sedate, deliberate mind and formed design [to] kill another."(132)
Today "deliberate design," "premeditated design," and "malice aforethought"
are said to be synonymous, and deliberate design can be formed only moments
before the act evidencing the intent.(133)
But when voluntary manslaughter instructions are given, the murder instructions
must carefully explain "how to determine the `aforethought' portion of
`malice aforethought' or the `deliberation' portion of `deliberate design.'"(134)
This resurrection of malice led the courts once again to confront the vexing
issue of implied malice.(135)

The troubling consequence of this is that the terms "malice"
and "malice aforethought," which bedeviled legal scholars for generations,
now figure prominently in instructions designed to help jurors apply the
law of Mississippi. Even when judges in England were forced by tradition
to employ the common law terminology in the 1800s, they were already sternly
cautioning jurors not to give the words "malice aforethought" their
ordinary meaning.(136) Paradoxically,
the Mississippi courts, blessed with legislation that avoided the terms,
continued to instruct jurors in language of malice. Appellate courts affirmed
convictions obtained upon such instructions and opined broadly that "malice
aforethought" was synonymous with "deliberate design."(137)

The Model Jury Instructions for deliberate design murder
today offer the trial judge confusing choices. One model instruction requires
the jury to find that the defendant "willfully and with malice aforethought
killed" without defining malice or willfully.(138)
A second requires the jury to find the defendant "did, with deliberate
design, kill."(139) A third combines the
first two and requires the jury to find that the defendant "[w]illfully,
with malice aforethought and with a deliberate design to effect the death
of [victim] killed [the victim]."(140)
The three manslaughter instructions similarly require the jury to find
that the defendant killed "without malice"(141)
but do not define or explain malice.

5. Modern Adjustments

By 1857 the basic structure of Mississippi's current homicide
law was in place. Three significant innovations took place in the twentieth
century.

Capital murder. Mississippi never had degrees of
murder and did not distinguish murder and capital murder until 1974.(142)
As did previous statutes for the state and territory, the 1857 Code punished
murder by death.(143) And in abandoning
the elaborate degrees of manslaughter adopted in 1839, it left the punishment
of manslaughter to the court's discretion.(144)

Death remained the only punishment for murder until 1875
when the legislature provided: "[T]he jury may, in their discretion, declare
that the penalty, or punishment, shall be imprisonment in the Penitentiary
for life; but if the jury shall omit to so declare the penalty in their
verdict, then the Court shall pronounce the death penalty."(145)
The requirement of unanimous jury agreement to depart from capital punishment
was strictly imposed.(146) Only in 1906
did legislation effectively provide life-imprisonment as the default punishment
for murder by requiring a jury to agree unanimously on a death sentence.(147)

The power of juries to impose death penalties as a matter
of unguided discretion was declared unconstitutional in 1972.(148)
The legislature responded in 1974 by revising the murder statute, specifying
those forms of homicide for which capital punishment could be imposed.(149)
Legislation also established criteria for a jury to employ in deciding
whether to sentence to death. Unless the defendant was the principal who
"actually killed," these criteria require that the defendant intended or
foresaw the victim's death by specifying that the capital defendant must
have attempted or intended to kill, or must have "contemplated that lethal
force would be employed."(150)

The sentencing jury must also find that "sufficient aggravating
circumstances" exist out of eight listed factors.(151)
To impose a sentence of death the jury must unanimously find that none
of seven mitigating circumstances outweigh aggravating circumstances.(152)
Designed to comport with evolving constitutional standards,(153)
the procedures appear onerous. Nevertheless, many of the factors are satisfied
by routine killings that otherwise meet the elements of capital murder.
Two forms of capital murder are themselves listed as aggravating circumstances:
capital felony murder and capital murder by use or detonation of a bomb
or explosive device.(154) The commonplace
motive of pecuniary gain is an aggravating circumstance.(155)
Aggravating factors also include the circumstance that the offense was
"especially heinous, atrocious or cruel."(156)
Because most, if not all, capital murders would satisfy this criterion,
it was held to be unconstitutionally vague in the absence of further limiting
definitions(157) and was subsequently
narrowed to methods of killing that involve the infliction of physical
or mental pain before death.(158)

Violence-prone persons are likely to have a criminal record
or be incarcerated, and the fact that a defendant was previously convicted
of a "felony involving the use or threat of violence to the person" or
is under sentence of imprisonment are aggravating factors.(159)
The fact that a killing was committed either while avoiding arrest or attempting
to escape provides an aggravating circumstance,(160)
as does the fact that a capital murder was committed to "disrupt or hinder
the lawful exercise of any governmental function or the enforcement of
the laws."(161) Knowingly creating "a
great risk of death to many persons" also provides an aggravating factor.(162)

A defendant convicted of capital murder but sentenced
to life imprisonment is not eligible for parole.(163)

The legislature initially designated as capital murder
what had previously been statutory felony murder--killing with or without
design during the commission or attempt to commit rape, burglary, kidnapping,
arson, or robbery.(164) Subsequent legislation
expanded the statutory felonies to include sexual battery, unnatural intercourse
with a child under age twelve, and felonious child abuse.(165)

The legislature also designated the murder of certain
victims as capital murder. Murder of peace officers and firemen is capital
murder.(166) To qualify as capital murder
under this subsection, the killing must satisfy the elements for non-capital
murder. The murder must occur "while such officer or fireman is acting
in his official capacity or by reason of an act performed in his official
capacity," and it must be "with knowledge that the victim was a peace officer
or fireman."(167) The statute broadly
defines peace officers and firemen:

[T]he term "peace officer" means any state or federal
law enforcement officer including but not limited to a federal park ranger,
the sheriff of [a county and his deputies, a constable, a marshal, chief
of police] or police officer of a city or town, a conservation officer,
a parole officer, a judge, prosecuting attorney or any other court official,
an agent of the Alcoholic Beverage Control Division of the State Tax Commission,
an agent of the Bureau of Narcotics, personnel of the Mississippi Highway
Patrol, and the employees of the Department of Corrections who are designated
as peace officers by the Commissioner of Corrections pursuant to Section
47-5-54, and the superintendent and his deputies, guards, officers and
other employees of the Mississippi State Penitentiary.(168)Murder
of "any elected official of a county, municipal, state or federal government
with knowledge that the victim was such public official" is capital murder.(169)

Furthermore, murder committed by certain methods ("use
or detonation of a bomb or explosive device") is capital murder.(170)
Murder committed by certain killers is capital murder. These include persons
"under sentence of life imprisonment" and persons offering or receiving
anything of value for murder.(171) Most
recently, the legislature added murders done on educational property.(172)

Causing death of fetus. Although the killing of
an embryo or fetus was not homicide at common law, since 1839 Mississippi
has punished as manslaughter the intentional killing of an unborn quick
child under two circumstances. First, the killing of an unborn quick child
is manslaughter when the death was both 1) willful(173)
and 2) caused by an injury to the body of the pregnant woman that was inflicted
with a mental state that would make the actor guilty of murder if the pregnant
woman died.(174) Second, the old statute
broadly criminalized abortions that were not necessary to save the life
of the pregnant woman or were not so certified by two physicians.(175)

In 2000, this second form of manslaughter of a fetus,
unconstitutional in many applications, was replaced by a broad fetal injury
statute.(176) The new statute does not
label fetus killing as "manslaughter," but the legislature included it
in the code among the manslaughter statutes.(177)
It provides that an intentional injury to a pregnant woman that "results
in a miscarriage or stillbirth" is punishable by not more than twenty years,
the sentence authorized for manslaughter.(178)
The statute also punishes intentional injuries to a pregnant woman that
result in injuries other than death of the embryo or fetus.(179)

Aggravated DUI. In 1983, as part of the implied
consent law, the legislature created a new crime for causing death or inflicting
serious injuries while intoxicated.(180)
There are four elements. First, the defendant must meet the statutory definition
of intoxicated:

(1) It is unlawful for any person to drive or otherwise
operate a vehicle within this state who (a) is under the influence of intoxicating
liquor; (b) is under the influence of any other substance which has impaired
such person's ability to operate a motor vehicle; (c) has an alcohol content
of ten one-hundredths percent (.10%) or more for persons who are above
the legal age to purchase alcoholic beverages under state law, or two one-hundredths
percent (.02%) or more for persons who are below the legal age to purchase
alcoholic beverages under state law, in the person's blood based upon grams
of alcohol per one hundred (100) milliliters of blood or grams of alcohol
per two hundred ten (210) liters of breath as shown by a chemical analysis
of such person's breath, blood or urine administered as authorized by this
chapter; (d) is under the influence of any drug or controlled substance,
the possession of which is unlawful under the Mississippi Controlled Substances
Law; or (e) has an alcohol concentration of four one-hundredths percent
(.04%) or more, based upon grams of alcohol per one hundred (100) milliliters
of blood or grams of alcohol per two hundred ten (210) liters of breath
as shown by a chemical analysis of such person's blood, breath or urine,
administered as authorized by this chapter for persons operating a commercial
motor vehicle.(181)Second, the defendant
must be operating a motor vehicle. Third, he or she must be doing so "in
a negligent manner."(182) And fourth,
he or she must either cause the death of another or cause certain serious
disfiguring or disabling injuries.(183)
Originally punished by up to five years in prison,(184)
the crime of aggravated DUI was held to be a lesser included offense of
manslaughter.(185) The punishment was
subsequently increased to ten years and then to twenty-five years imprisonment--a
penalty greater than that prescribed for manslaughter.(186)
This crime today is also subject to a minimum term of imprisonment of five
years(187) and there is no similar minimum
penalty for manslaughter.(188) Thus it
should no longer be considered as a lesser offense of manslaughter.

6. Summary: Unintended Killings Under the Current
Code

Under current Mississippi law, unintended killings may
be either capital murder, murder, manslaughter, or aggravated vehicular
homicide.

Capital murder. Capital murder can be committed
in two different ways that do not require intent. First, killing is capital
murder if done during the commission or attempt to commit any of the predicate
capital felonies.(189) Second, killing
is capital murder when it meets the definition of murder and one of the
following:

the victim was a peace officer or fireman who is killed
while acting in his or her official capacity or by reason of an act performed
in his or her official capacity, and the killer knew the victim was a peace
officer or fireman;

the victim was an elected official and the killer knew
the victim was an elected official;

the murder was perpetrated by use or detonation of a bomb
or explosive device;

the murder was perpetrated by a person offered or receiving
anything of value;

the murder was perpetrated by a person under sentence
of life imprisonment; or

the murder was perpetrated on educational property.(190)Murder.
Murder can be committed without intent by an act eminently dangerous and
evincing a depraved heart regardless of human life.(191)
It can also be committed without intent during non-capital felonies.(192)
The mens rea required for unintentional killings that qualify as murder
other than felony murder and its difference from the mens rea required
for manslaughter is discussed in Part III.

Manslaughter. Today unintentional criminal homicides
not prosecuted as aggravated DUI are prosecuted either as depraved heart
murder or under the general statute that defines manslaughter as an unlawful
killing resulting from the killer's "act, procurement, or culpable negligence."(193)
The mens rea required for this form of manslaughter and its difference
from the mens rea required for murder are discussed in Part III.

Section 97-3-47 is today regarded as Mississippi's equivalent
of a general involuntary manslaughter statute.(194)
The court of appeals has even opined that the statute codifies both manslaughter
based on culpable negligence and manslaughter based on an intentional wrongful
act that unintentionally causes death.(195)
Nevertheless, language of the statute that is today given no legal effect
provides that the statute applies only to those "other" killings
by act, procurement, or culpable negligence "not provided for in this
title."(196) The unmistakable original
meaning of this language was to limit the application of the statute to
those killings not indictable under some other more specific murder or
manslaughter statute, and the 1839 Code's language stated this still more
explicitly: "Every other killing . . . not declared in this act murder,
or in this title manslaughter of some other degree, shall be deemed manslaughter
in the fourth degree."(197) The drafters
in 1839 envisaged a hierarchy of degrees of murder under which the specific
statutory forms of manslaughter were punished more seriously. The least
serious fourth degree classification was reserved for two different kinds
of killings: 1) involuntary killings with weapons and heat of passion killings
by means neither cruel nor unusual that did not qualify as excusable homicide,(198)
and 2) the residual category covering all other unlawful killings not prohibited
by any other applicable statute.(199)

The purpose of the statutory language limiting involuntary
manslaughter to "other" killings was to encourage the prosecution of killings
under more specific (and more severely punished) forms of homicide. Such
other more specific manslaughter provisions included killings during the
commission of certain felonies(200) and
misdemeanors,(201) unnecessary killings
of felons,(202) involuntary homicide of
trespassers,(203) unintended killing by
drunken doctors,(204) and killings resulting
from overloading boats(205) and boiler
explosions on steamboats and railroad engines.(206)

After degrees of manslaughter were eliminated in 1857,
the consequences of indicting under different manslaughter statutes became
less significant. Nevertheless, the code retained the residuary language--"[e]very
other killing . . . not provided for in this chapter."(207)
Although this language has been preserved down to the present, there have
been no cases giving it effect by requiring prosecution under other manslaughter
statutes.(208) And, though the issue has
apparently never been raised to the court, there have been numerous prosecutions
under the statute that could have been brought under other more specific
manslaughter statutes, and courts have never suggested anything was amiss.(209)
Consequently, despite its limiting language, this statute has broad application
to unintended criminal homicides.

Though ignored by courts and prosecutors, the Mississippi
statute that is today thought to criminalize voluntary manslaughter
was apparently also conceived originally to apply to certain unintended
killings. The Penitentiary Code of 1839 defined manslaughter as a killing
"without design" in a heat of passion but either in a cruel or unusual
manner or by use of a dangerous weapon.(210)
These probably covered hot-blooded, but intentional, killings without premeditation.
The 1839 laws also criminalized "involuntary killing of another,
by any weapon, or by means neither cruel or unusual, in the heat of passion"
not otherwise declared to be excusable.(211)
This probably was meant to cover hot-blooded unintentional killings with
weapons. The generous excuse statute preempted much of the statute for
involuntary, barehanded killings, but the manslaughter statute still applied
to such killings when provocation was not sufficient as a matter of law.(212)
In 1857 these statutes were consolidated and amended, substituting the
new requirement of "without malice" for the old requirements of "without
design" and "involuntary."(213)

The reasons for this subtle change are not clear. It is
possible the change was intended merely to consolidate two similar statutes
and was not intended to change the elements. The legislature in 1857, as
in 1839, probably still meant to criminalize all homicides that resulted
from fights in which the defendant employed a dangerous weapon or killed
barehanded but in a cruel and unusual manner. The substitution of the requirement
of "without malice" was thus meant to distinguish such killings from intentional
murder, which had itself been redefined from "premeditated design" in 1839
to "deliberate design" in 1857.(214) Specifying
that manslaughter occur "without malice" probably signaled nothing more
than the absence of the need to prove the deliberate design that would
make a killing murder. Accordingly, all killings by such methods constituted
either murder or manslaughter except when they were committed under those
circumstances that constituted a justification or excuse.(215)

The defense of justification was established by necessary
self defense.(216) The defense of excuse
was established narrowly when a defendant killed without intent ("by accident
and misfortune") but did so in a provoked heat of passion or in an affray
"without any undue advantage being taken, and without any dangerous weapon
being used, and not done in a cruel or unusual manner."(217)

The chief distinction in 1857 was still between methods
of killing. On the one hand, killings with weapons or in cruel and unusual
ways were either murder, when done with deliberate design (premeditated
design or malice), or manslaughter, when committed in a heat of passion
during a provoked rage or during spontaneous fights.(218)
Intent to kill was apparently not important for homicides committed with
weapons, and there was no statutory defense of accident or excuse for such
killings.(219) On the other hand, for
barehanded killings intent was crucial, and the defense of accident and
misfortune was available.(220)

The statute thus broadly criminalized killings that were
prohibited under the old English manslaughter act (a counterpart of which
had previously been codified in Mississippi) that prohibited killings with
daggers and swords.(221) The generous
excuse for provoked barehanded killings dispensed with the common law doctrine,
still followed by many states, that death resulting from a criminal assault
was manslaughter.(222) Excusable homicide
explicitly extended to accidental killings resulting from lawful
acts and to accidental killings resulting from provoked heat of
passion or sudden combat (without undue advantage, dangerous weapon, or
cruel or unusual manner). Killings by "accident or misadventure" but in
an unlawful manner, or without provocation, or during combat but with a
weapon were not excused. Whether an assailant meant to kill, wound, or
merely frighten in the midst of a fight became legally unimportant. The
elimination of special requirements of intent in hot-blooded killings anticipated
sociological observations made over a century later that even the most
notoriously intentional homicides express deeply conflicted motivations.(223)

There were further changes to this text after 1857 as
follows:

1857 text--"[B]y accident and misfortune, in the
heat of passion, upon any sudden and sufficient provocation; or upon any
sudden combat, without any undue advantage being taken, and without any
dangerous weapon being used, and not done in a cruel or unusual manner."(224)

Recodified text in 1871-1892--"[B]y accident and
misfortune, in the heat of passion . . . , or upon any sudden combat,
without any undue advantage being taken, and without any dangerous weapon
being used, and not done in a cruel or unusual manner."(225)

Recodified text 1892--"(b) When committed by accident
and misfortune, in the heat of passion, upon any sudden and sufficient
provocation; (c) When committed upon any sudden combat, without undue advantage
being taken, and without any dangerous weapon being used, and not done
in a cruel or unusual manner."(226)

These changes to the text were probably meant to clarify
the language and not to change the substantive legal requirements. In Wood
v. State, the supreme court construed the law of excusable homicide
under the 1880 Code, disregarded the disjunctive "or" in the statute, and
assumed that excusable homicide required the absence of a dangerous weapon
for both provoked and sudden combat killings.(227)
In that case the victim allegedly called the defendant a "damn liar" and
struck him with a board.(228) The defendant
then stabbed the victim.(229) The defendant
requested an instruction that killing was excusable when by accident and
misfortune, in a heat of passion, and upon a sudden quarrel.(230)
The court affirmed the denial of the instruction maintaining that it "would
not be correct in any case where death resulted from the use of a deadly
weapon."(231)

Whether or not this approach corresponded to the original
purposes of the legislature, the supreme court in later cases relied heavily
on the phrasing of the revised statute and the absence of language of "without
a dangerous weapon" in subsection (b).(232)
It has not yet similarly relied on the corresponding absence of language
of "accident and misfortune" in subsection (c) but has instead recognized
the general availability of subsection (a) (accidental killings during
lawful acts) to killings with weapons.(233)
In a 1996 case where an estranged husband shot and killed his wife and
later claimed they were fighting for possession of his handgun, the court
reversed a murder conviction where requested instructions on accident and
misfortune were omitted.(234) Although
the court needed only to decide that an accidental killing during a lawful
act was excusable homicide, which had been settled law since 1839, it proclaimed
far more broadly from "clear language of the statute" that "the only time
a homicide cannot be excusable when a dangerous weapon is used is when
it takes place during sudden combat."(235)

A few other cases suggest the continuing validity of the
rule that a killing (with or without a dangerous weapon) during an unlawful
act is manslaughter.(236) In such cases
the omission of a defense instruction on accidental homicide is proper,
but in general, accident and misfortune provides a defense in shooting
deaths as in any other kind of case, and the omission of appropriate instructions
is reversible error. Accordingly, the prosecution may have to refute a
claim of accident and misfortune in order to prove manslaughter.(237)

The current confusion is expressed in a model instruction
that provides for a complete defense where the jury finds the defendant
"without any design or deliberation to cause the death of [deceased's name]
had possession of a pistol, and in the heat of passion in a struggle between
[deceased's name] and [defendant's name], the fatal shot was fired accidentally
and through misfortune, upon any sudden and sufficient provocation."(238)

Aggravated DUI. Unintended killing constitutes
aggravated DUI when the defendant satisfies the elements of driving while
intoxicated and causes death in a negligent manner.(239)

II. Unintentional Criminal Homicide in

Other Jurisdictions

A. States and Federal Government

Today most states and the federal government recognize
some form of extreme recklessness as providing a sufficient culpable mental
state for murder.(240) Statutory schemes
vary in defining such murders as killings with "malice"(241)
or "implied malice,"(242) and in describing
the accompanying mental states as "`a depraved mind regardless of human
life,' `an abandoned and malignant heart' and `a heart regardless of social
duty and totally bent on mischief.'"(243)
More recently, under the influence of the Model Penal Code (discussed in
Part II(B)), some states have defined this kind of murder in terms of recklessness
and extreme indifference.

A common problem for jurisdictions that treat some unintended
killings as murder is distinguishing the culpable mental state required
for unintentional murder from that, often characterized as culpable or
criminal negligence, required for involuntary manslaughter or other forms
of unintentional criminal homicide.(244)
In general, extreme recklessness required for murder is said to require
a very high degree of risk of death or serious bodily injury(245)
or a great indifference to the value of human life.(246)
Jurisdictions are split over whether the defendant must also be subjectively
aware of the risk, though scholars express a preference for actual subjective
awareness.(247)

B. Model Penal Code

The American Law Institute began work on the Model Penal
Code in 1952. Adopted finally in 1962, the code influenced revisions of
criminal statutes in at least thirty-four states.(248)

The adjacent states of Alabama, Tennessee, and Arkansas
have been significantly influenced by the Model Penal Code in revising
their homicide statutes.(249) But Mississippi
homicide laws have not been amended in the wake of the Model Penal Code,
nor has the Model Penal Code had much other effect on criminal jurisprudence
in the state. Exceptions are the aggravating and mitigating circumstances
for capital punishment, which Mississippi borrowed from the Model Penal
Code,(250) and the crimes of simple and
aggravated assault.(251)

1. Murder

The Model Penal Code defines murder to include killings
done purposely or knowingly.(252) Murder
also includes certain unintentional killings: "[C]riminal homicide constitutes
murder when . . . it is committed recklessly under circumstances manifesting
extreme indifference to the value of human life."(253)
The code's drafters, assuming that the common law doctrine of implied malice
embraced certain unintentional killings, generalized that "the essential
concept was one of extreme recklessness regarding homicidal risk."(254)
The code requires actual subjective awareness of risk in its definition
of the operative mental state, "recklessly," by stating: "A person acts
recklessly with respect to a material element of an offense when he consciously
disregards a substantial and unjustifiable risk that the material element
exists or will result from his conduct."(255)
Hence, "inadvertent risk creation, however extravagant and unjustified,
cannot be punished as murder."(256)

The Model Penal Code also defines reckless conduct to
impose the objective requirement that the risktaking deviate significantly
from the community's standards: "The risk must be of such a nature and
degree that, considering the nature and purpose of the actor's conduct
and the circumstances known to him, its disregard involves a gross deviation
from the standard of conduct that a law-abiding person would observe in
the actor's situation."(257) The drafters
settled their disagreements over felony murder by inserting into the elements
of extreme recklessness murder an evidentiary rule permitting an inference
of extreme recklessness when the defendant is committing or attempting
to commit certain serious felonies or is fleeing after committing or attempting
to commit them.(258)

2. Manslaughter

The Model Penal Code defines its version of involuntary
manslaughter as criminal homicide "committed recklessly."(259)
The drafters recognized that, due to the definition of "recklessly," this
represented a substantial innovation, both requiring the creation of a
particularly high degree of risk and eliminating "all forms of negligence,
in the sense of inadvertent risk creation."(260)

3. Negligent homicide

Recognizing that the code's definition of manslaughter
excludes cases of unconscious risktaking that were widely punished as manslaughter
at common law,(261) the Model Penal Code
proposes a new crime of negligent homicide to punish killings "committed
negligently."(262) The code's definition
of negligence does not require actual awareness of risk but denotes conduct
that is more extreme and blameworthy than civil negligence. It requires
that the risk of which the person "should be aware" is both "a substantial
and unjustifiable risk" and that the risk be of "such nature and degree
that the actor's failure to perceive it . . . involves a gross deviation
from the standard of care that a reasonable person would observe."(263)

4. Summary

The Model Penal Code punishes unintended killings as murder,
manslaughter, or negligent homicide when the death results from the disregard
of a substantial and unjustifiable risk of death. The risktaking must evidence
a gross deviation from the standard of care followed by law-abiding persons
(for murder and manslaughter) or by reasonably prudent persons (for negligent
homicide). If the actor is not aware of the risk, the liability is limited
to negligent homicide. If the actor is aware of the risk, liability exists
for manslaughter. If the actor is aware of the risk and also manifests
extreme disregard for the value of human life, the homicide is murder.

The appeal of the Model Penal Code's ingenius drafting
obscures two pervasive problems. First, its emphasis on subjective awareness
or risk has limited consequences in practice because the factfinder must
infer such awareness from objective aspects of conduct. In making judgments
about awareness the factfinder may be influenced by factors ranging from
the actor's age to his or her race. Defining elements of a crime in subjective
terms appears to promote justice by linking the severity of punishment
to the actor's mental state.(264) But
because of judicial deference to factfinding, it also effectively shields
convictions from appellate scrutiny for consistency.

Second, the code's emphasis on awareness may fail to describe
appropriately the psychological dynamics involved in risktaking. Many deaths
result from high risk conduct where the actors claimed not to anticipate
the fatal results yet were motivated by the thrill of risk of injury or
death. The difficulty in determining whether the actor was "aware" of a
risk and "consciously disregarded it" may not be a problem of evidence
as much as a problem of recognizing that "awareness" does not correspond
to the wilful denial of responsibility often displayed in the cases.

III. Mens Rea for Unintentional Murder

and Manslaughter

A. Depraved Heart Murder

1. Language of the Statute

The statute governing unintended murder qualifies both
the act and the accompanying mens rea. First, the killing must occur "in
the commission of an act eminently dangerous to others." Second, the act
must be one "evincing a depraved heart, regardless of human life."(265)
The statute makes it explicit that no intent or premeditation is required
by adding "although without any premeditated design to effect the death
of any particular individual."(266)

Eminently dangerous. No opinions define the meaning
of an "act eminently dangerous," and the court has never held that it is
error to instruct the jury in language drawn from the statute without further
clarification as is routinely done.(267)
The court has approved an instruction on deliberate design murder employing
the statutory language over an objection that the language stated "an abstract
legal definition."(268) But the meaning
of an act "eminently dangerous" may be less obvious to a jury than "deliberate
design."

The meaning of such an act is certainly far from obvious
to the court. The plain meaning of the constituent words of the statute
is obscure because the statute possibly employed the wrong words. "Eminently"
may be a malapropism for "imminently." While "eminently" means famously
or conspicuously, it also operates generally as an intensifier like "especially"
or "notably."(269) "Imminently," in contrast,
connotes the quality of being immediately impending or threatening.(270)

An "eminently dangerous" act would be one that is openly
and widely perceived as dangerous. An "imminently dangerous" act would
be one that presents an immediate risk of harm. Classic examples of implied
malice, such as shooting into a crowded room and throwing a heavy object
from a roof in London onto a crowded street(271)
represent acts that are no doubt both eminently and imminently dangerous.
But in many cases the immediacy of danger does not coincide with its obviousness.
Giving a small child access to a firearm might be eminently dangerous yet
present no imminent risk of harm. Selling improperly stored meat might
be imminently dangerous but not eminently so.

"Eminently" may be exactly what the legislature meant,
but more recent legal authorities render the term of art as "imminently
dangerous."(272) A number of opinions
by the supreme court tacitly correct the language of the statute to require
an act imminently dangerous. Justice Hawkins concluded: "My guess is that
the authors meant `imminently' rather than `eminently' dangerous to others.
`Imminently' suggests something that is likely to occur at any moment.
The word `eminently,' however, has been in this code section at least since
1848."(273) The actual meaning of the
words has not affected the development of the law.

Intent to kill. The supreme court has repeatedly
held in the past decade that an act eminently dangerous to others and evincing
a depraved heart regardless of human life includes intentional homicide.(274)
In other words, the state does not have to prove the absence of "premeditated
design," and homicides under section 97-3-19(a) with "deliberate design"
and unintended killings covered by section 97-3-19(b) are not mutually
exclusive categories. Instead, the former are included within the latter,
for "[a]s a matter of common sense, every murder done with deliberate design
to effect the death of another human being is by definition done in the
commission of an act imminently dangerous to others and evincing a depraved
heart, regardless of human life."(275)
Accordingly, the supreme court affirmed a muder conviction for a stabbing
death where the jury was instructed both on deliberate design and depraved
heart murder,(276) and the court of appeals
affirmed a murder conviction obtained with a depraved heart instruction
in a case where the defendant apparently shot the victim with intent to
kill.(277)

Malice. Older cases held that all murder requires
malice, notwithstanding the absence of that term from the statute, and
that the failure to instruct on malice was reversible error.(278)
Moreover, a statute permits (but does not require) all murder indictments
to charge malice.(279) But malice has
come to denote the mens rea required for deliberate design murder; and
"malice aforethought," "deliberate design," and "premeditated design" have
become synonyms.(280) Where a malice instruction
is given, older authority suggests that it is "unnecessary and unwise to
attempt to define malice."(281) But because
malice does not mean what an uninstructed reasonable person would assume,
and because express malice does not apply to depraved heart murder, it
would be far better to omit a malice instruction in all murder prosecutions,
especially in depraved heart murder cases where it is not required under
any name.(282)

Dangerous to others. There is no requirement today
that the act dangerous to "others" create risks to more than one person.(283)
The supreme court has declared: "An act which poses a risk to only one
individual and which results in that individual's death may also be deemed
depraved heart murder."(284)

This proved controversial with two justices taking the
position that an act "eminently dangerous to others" was meant to apply
only to conduct creating threats of injury to groups. Justice Hawkins relied
in part on the plural "others" in protesting the application of this statute
to a woman who killed her child.(285)

But the real concern of the dissenters was not that a
risk of injury to one person was less blameworthy. After all, shooting
once into a crowded building threatens only one life. Rather, they were
alarmed at the reduction of proof this permitted in killings where there
was only one victim. As Justice Banks explained, conduct directed at a
single individual previously required sufficient evidence to persuade the
jury that the actor killed with deliberate design.(286)
Because no such design or malice is inferred where no specific victim is
targeted, Justice Banks reasoned that the depraved heart statute was intended
to cover a different category of cases.(287)
Moreover, the design equated with malice could be negated by the presence
of provocation under the circumstances that constitute voluntary manslaughter.(288)
But such circumstances might not prevent a jury from finding a depraved
heart.

While Justice Banks was probably right that the difficulty
of inferring malice was a key motive for separately defining murder by
reference to acts eminently dangerous to others, he did not persuade the
court that the two forms of murder must be considered mutually exclusive.
Though Justice Robertson was not concerned that depraved heart murder could
preempt mitigation to manslaughter,(289)
Justices Hawkins and Banks rightly insisted that such preemption might
undermine the distinct levels of homicide liability envisaged by the legislature.(290)
The problem arises because Mississippi authority has long explained mitigation
of hot-blooded killings by the theory that provoked impulsive (but intentional)
killings do not stem from the cooler, more sedate "deliberate design" required
for murder.(291) On this theory provocation
only negatives intent, not other forms of malice. Because a depraved heart
killer need have no intent at all, provocation would not prevent a jury
finding of murder. The court's extension of depraved heart murder requires
a significant adjustment to the voluntary manslaughter instructions in
order to preserve the jury's power to mitigate hot-blooded killings to
manslaughter. While the supreme court has been alerted to this real problem,
it has, unfortunately, not yet resolved it.(292)

Depraved heart regardless of human life. The statutory
phrase "evincing a depraved heart, regardless of human life," must be included
in jury instructions, and its omission is fundamental error.(293)
Yet the meaning of this element has attracted little separate consideration
by the court.(294) Justice Robertson has
suggested that the phrase "depraved heart" may have no meaning at all:

I take it that no one will dispute that the phrase must
be seen a metaphor, a euphemism, regarding the actor's cognitive, not cardiac,
function. I am open to the suggestion otherwise, but I do not see that
it says anything of consequence independent of "eminently dangerous to
others" and "regardless of human life.(295)
As previously suggested,(296) murder as
defined in section 97-3-19(1)(b) was probably meant to capture cases of
implied malice--cases where the evidence of motive (malice or hate) was
supplied not by direct evidence of deliberate killings but by inferences
drawn from the extreme dangerousness of the act, coupled with the actor's
disregard of human life. If so, Justice Robertson's speculation seems warranted,
and the reference to "depraved heart" probably was meant to state a conclusory
characterization of the killer rather than to provide an additional element.
It is uncertain whether the element "regardless of human life" means that
the killer must have contemplated and disregarded the possible fatal consequences
of his or her acts.

2. Cases

Nothing in the depraved heart murder statute distinguishes
between methods of killings. Nevertheless, the supreme court has been more
receptive to prosecutions where deadly weapons have been used, though it
has not consistently permitted an inference of extreme dangerousness from
that cause of death alone. While other jurisdictions have approved murder
convictions where extremely reckless drivers caused death,(297)
no case in Mississippi has yet resulted in depraved heart murder liability
for a driving fatality. Indeed, as discussed below in part B(2), the court
was initially reluctant even to impose culpable negligence manslaughter
liability in such cases.

Killings with deadly weapons. With the absorption
of deliberate design by depraved heart murder,(298)
the question arises whether evidence that a death was caused by the discharge
of a deadly weapon is sufficient without more to support a conviction of
depraved heart murder. In theory, the intentional discharge of a deadly
weapon should provide sufficient evidence of a depraved heart because the
intentional use of a deadly weapon provides sufficient evidence of malice
or deliberate design.(299) Even before
the merger of deliberate design and depraved heart murder, the supreme
court found that the facts of a typical extreme recklessness case, like
shooting into a crowded car with intent to frighten, provided sufficient
evidence of deliberate design murder.(300)
But the supreme court's treatment of the permissible inference of intent
is inconsistent. On the one hand, it has emphasized for over 150 years
that juries should not be instructed that they should presume or infer
malice or deliberate design, and it has held that such instructions constitute
reversible error.(301) On the other hand,
in its readiness to affirm murder convictions where voluntary manslaughter
instructions have been omitted, it has gone far towards suggesting that
the permissible inference of deliberate design must be countered by compelling
evidence of heat of passion or imperfect self defense.(302)
Though this confusion will arise most often in intentional murder cases,
it may also arise where a defendant argues both that he did not mean to
discharge a weapon and did so while in a heat of passion.

Accordingly, absent mitigation by voluntary manslaughter,
deliberate use of a deadly weapon normally provides sufficient evidence
of an act eminently dangerous evincing a depraved heart regardless of human
life.(303) Though the evidence is sufficient
to support a jury finding, it is nevertheless reversible error to instruct
the jury that they may infer a "depraved heart regardless of human life"
from the acts causing death.(304)

The court has repeatedly held that an unjustified deliberate
discharge of a firearm towards or into a crowd of persons is sufficient
evidence of murder based on an act eminently dangerous to others and evincing
a depraved heart regardless of human life.(305)
At the same time there is some authority that not every death resulting
from a careless or unlawful discharge of a deadly weapon may be criminal
homicide of any sort, let alone murder. In Dixon v. State, a drunk
man fired a handgun at the ground, but the bullet struck a tin can, ricocheted,
and killed a woman standing nearby.(306)
Even though the shooting violated three misdemeanor statutes, the court
reversed a manslaughter conviction where the trial court had refused to
instruct that death must be the natural or probable result.(307)
It suggested in dictum that to constitute depraved heart murder there must
be a close causal connection between the reckless act and the death, and
the act must be something more than a legal violation, it must be "essentially
evil."(308)

The cases are flatly inconsistent when the evidence is
inconclusive with respect to whether a firearm was voluntarily discharged
or deliberately aimed towards a person or group of persons. Thus the supreme
court affirmed a murder conviction where a defendant recklessly handled
a handgun, pointed it at a victim, and fired it.(309)
According to witnesses, although the defendant had been warned of the danger
of the weapon, he made a statement that somebody might get shot, yet said
immediately before firing that the gun "ain't loaded."(310)
Though the court remarked that "we would be better satisfied had the conviction
been for manslaughter," it held that the evidence was sufficient for murder:
"The evidence showed, and the jury manifestly believed it, that [the defendant]
was indifferent as to the consequences of his acts, and disregardful of
the safety of others, and did not care what the consequences were."(311)

This would seem to support the conclusion that the creation
of risks evidenced by the discharge of a handgun at point blank range,
the playing of "Russian roulette," or shooting over someone's head would
provide sufficient evidence to support a jury verdict of depraved heart
murder.(312) In a well known Pennsylvania
case, a seventeen-year-old boy shot a friend, believing that the single
armed chamber in a revolver was not in firing position. When the gun fired,
he proclaimed, "Gee, Kid, I'm sorry."(313)
The Pennsylvania Supreme Court affirmed a murder conviction finding that
the defendant's conduct exhibited "gross recklessness for which he must
reasonably anticipate that death to another is likely to result."(314)
Such facts probably also support extreme recklessness murder under the
Model Penal Code.(315)

Nevertheless, one Mississippi Supreme Court decision suggests
that a point blank shooting may not provide sufficient evidence of depraved
heart murder. In Tait v. State, a defendant cocked a handgun, held
it to a friend's head, and the gun went off while the two were "joking
around and horseplaying."(316) Witnesses
summoned police, and when the police arrived, the defendant was holding
the victim in his arms, sobbing "I killed him. Oh, my God, I killed him.
I shot him."(317) Though the defendant
did not testify or request an involuntary manslaughter instruction, the
court held the evidence insufficient as a matter of law to support a jury
verdict of depraved heart murder, and it rendered a verdict of manslaughter.(318)

The court conceded that the expansion of depraved heart
murder to reckless acts directed towards one person "would seem to include
the defendant's act of pointing a gun at the victim and pulling the trigger."(319)
Nevertheless, it placed extraordinary weight on the evidence of the defendant's
remorse to conclude that the shooting was accidental: "Tait's conduct of
falling to the ground and crying following the shooting could be considered
as consistent with an accident. In addition, there was no testimony indicating
that the gun was the defendant's, that he knew it was loaded, or that he
pulled the trigger."(320)

This extraordinary characterization of the evidence overlooked
the defendant's own admission that, "I killed him . . . I shot him" and
his concomitant failure to protest that the killing was an accident. The
court also did not acknowledge the relevance of the presumption that actors
intend the natural and probable consequences of their acts. The most troubling
aspect of the case, however, was the court's assumption that an accidental
shooting was incompatible with depraved heart murder. In making this assumption
the court confused the mental state of intent required for deliberate design
murder, which is negated by genuine accident, and the mental state required
for depraved heart murder, which has never required intent to kill, and
which, therefore, should not be negated by accident.

The question in depraved heart killings is not whether
the death was accidental or unintended, but rather the degree of recklessness
that caused the accident. Accepting the facts as the court described them,
the defendant held a revolver to the victim's head, did not determine whether
the gun was loaded, cocked the hammer, and after the gun fired in the presence
of witnesses, expressed surprise and remorse.(321)
To find such evidence insufficient would eliminate depraved heart murder
in most, if not all, cases that do not contain evidence of hostile motive
satisfying the traditional criteria for deliberate design murder.

The holding in Tait is accordingly inconsistent
with the legislative purposes in criminalizing depraved heart murder. The
decision's retrospective, tendentious characterization of facts is incompatible
with the court's prevailing practice of leaving the determination of an
actor's mens rea to the jury.

Moreover, the Tait holding seems flatly inconsistent
with other recent decisions. In Blanks v. State, the defendant admitted
shooting and killing a high school friend but denied the shooting was intentional.(322)
The killing was not witnessed, and the defendant concealed the body.(323)
Although the jury convicted of manslaughter, not depraved heart murder,
the supreme court insisted that there was no error in indicting and instructing
for depraved heart murder, and it even concluded that the evidence was
sufficient to support a depraved heart murder conviction, notwithstanding
the defense claim of accident.(324) The
dictum in
Blanks is preferable to the result in Tait in that
Blanks
would leave the determination to the jury.(325)
Nevertheless, the reasoning in Blanks is questionable to the extent
it suggests that accident might provide a defense to depraved heart murder.
The court focused heavily on post-accident evidence to rebut the claim
of accident, emphasizing the defendant's efforts to conceal the crime.
"[The defendant's] conduct and statements following the killing were not
consistent with that of a person who has accidentally killed a friend."(326)
The weight of such evidence is debatable because the defendant, after concealing
the crime, revealed himself as the killer.(327)
More to the point, the court should have held that an accident resulting
from sufficiently reckless conduct does not excuse or mitigate murder liability.(328)

The court's analysis of inferences in Blanks suggests
there was sufficient evidence even of deliberate design murder. In such
a case, of course, the jury must conclude that the killing was not accidental.
But for depraved heart murder, the jury verdict should be affirmed even
if the killing was unintentional where the killer created risks of death
through an act eminently dangerous that evinced a depraved heart regardless
of human life. On the one hand, the post accident concealing of the body
that might support an inference of intent to kill based on a theory of
consciousness of guilt should equally support an inference of such extreme
recklessness and indifference. On the other hand, the direct evidence of
remorse in a case like Tait should be given to the jury, and the
absence of efforts to conceal or deny should be accorded no weight in that
case since the killing was observed. The witnesses amply described the
objective circumstances of risktaking and the defendant's response to the
accident, thus avoiding the need for any evidentiary inference.(329)
And the presence of witnesses eliminated the motive and opportunity for
concealing the crime.

The latest word from the court, Clark v. State,
seems generally consistent with dicta in Blanks and inconsistent
with the result of Tait, though Justice McRae mentioned neither
of those decisions in writing the opinion for the court.(330)
The killing in Clark occurred during a domestic dispute during which
the victim locked herself in an office.(331)
The defendant retrieved a shotgun from his car and "shot the door several
times in an attempt to enter the room. The shots hit [the victim] at close
range and killed her."(332) The jury was
instructed on murder and voluntary manslaughter.(333)
It was not instructed on culpable negligence manslaughter, despite a defense
request.(334)

The supreme court held the evidence sufficient to support
a depraved heart murder conviction even though the victim was locked behind
a steel door and the defendant claimed he had no intent to kill her.(335)
The court emphasized that "in a `depraved heart' murder, malice can be
inferred from the circumstances if the actions involved a very high degree
of carelessness evincing a reckless indifference to the danger to human
life."(336) The result is clear: shooting
repeatedly through a door with a shotgun knowing there is a human being
on the other side is criminally reckless enough to support a murder conviction.
Unfortunately, the court proceeded to explain this result in terms of "malice,"
reasoning that "[m]alice too may be inferred when such a high degree of
recklessness is involved."(337) The court
held further that the requested culpable negligence manslaughter instruction
was properly refused because the extreme recklessness displayed by the
defendant could only be malice and thus support depraved heart murder and
not culpable negligence.(338) "Looking
at the evidence in a light most favorable to [the defendant], as well as
all reasonable inferences which may be drawn therefrom, a reasonable jury
could not have found him guilty of mere culpable negligence."(339)

In other words, while Tait held that a jury erred
as a matter of law in finding an unintended shooting death to be depraved
heart murder, Clark held that a reasonable jury could not find an
unintentional shooting death to be culpable negligence because it could
only be depraved heart murder. Blanks points the way out of this
dilemma. In Blanks, an unjustifiable and unexcusable shooting death
was found to provide sufficient evidence for manslaughter based on culpable
negligence, murder based on depraved heart--and possibly even murder based
on deliberate design.(340) The court held
that where the jury was properly instructed on all applicable homicide
offenses and its verdict was supported by adequate evidence, its verdict
should not be disturbed on appeal.(341)

From Blanks it follows that facts presenting sufficient
evidence of depraved heart murder also present facts that would support
a verdict of culpable negligence manslaughter. In order for the jury to
determine whether the recklessness is so aggravated as to rise to depraved
heart murder, the jury in unintentional homicide cases should be given
instructions permitting convictions for either crime. In depraved heart
murder cases where there is a fact question of sudden combat or provocation,
the court should also instruct on voluntary manslaughter, as it did in
Clark.(342)

In Dowda v. State, the defendant placed a gun to
the victim's head and pulled the trigger.(343)
The defendant had previously removed the clip from the gun, and the judge
who tried the case without a jury specifically found that the defendant
mistakenly believed the gun was unloaded.(344)
The court nevertheless convicted the defendant of depraved heart murder.(345)
The court of appeals, without citing any supreme court decisions on point,
held that the belief that the gun was unloaded did not prevent depraved
heart: "The legal conclusion reached by the trial judge was sound--a person's
pulling the trigger on a weapon that has been placed against another's
head, even when the first person believes the gun to be unloaded, can nonetheless
be an act that is in utter disregard for life."(346)
Two judges dissented, arguing that a mistaken belief that the gun was unloaded
failed to establish depraved heart murder.(347)

Killings without deadly weapons. Although the cases
have not worked up any precise rule, it appears that unexpected deaths
resulting from simple assaults may not support even manslaughter liability(348)
while unexpected deaths resulting from assaults accompanied by an attempt
to inflict serious injury are sufficient evidence of depraved heart murder.
Therefore, evidence that a defendant struck a victim "several times with
a large stick," including on the head, was sufficient to sustain a depraved
heart murder conviction.(349) Evidence
of extensive blows to the head from which the victim died was sufficient
to support a verdict of depraved heart murder,(350)
as was evidence that an adult defendant kicked a four-year-old in the stomach
and hit her in the head repeatedly, inflicting severe injuries from which
she died.(351) Causing death by an assault
with a hammer was likewise sufficient to support a murder conviction based
on a theory of depraved heart:(352)

Lack of intent notwithstanding, [defendant's] use of a
hammer to assault a 79-year-old, one-armed man (who was running away) and
his 78-year-old wife may, at the very least, be described as grave recklessness
manifesting utter disregard or indifference to the resultant creation of
eminent [sic] danger to the life of both [victims].(353)
In a case where a mother allowed her severely retarded daughter to die
of starvation and thirst, the court was divided.(354)
A majority agreed to reverse a murder conviction, but only a plurality
supported the conclusion that the evidence was sufficiently ambiguous that
the conviction of depraved heart murder should be reversed and remanded
for a second trial.(355) (Three justices
concurred, but on the ground that depraved heart murder should not apply
to killings of individuals,(356) and two
justices dissented because they found the evidence sufficient.(357))
In concluding that the evidence was inadequate, the plurality placed great
weight on the extreme difficulty posed by the victim's medical condition
and by the record of the defendant seeking medical help on more than a
dozen occasions prior to the death:(358)

The [defendant] . . . could not give the requisite care
in this unusual situation. . . . We should not hold the defendant to a
standard of care that she could not give and a standard of care that even
professionals only talked about but could not give permanently and a standard
of care that was not available to the defendant even through charitable
or government agencies.(359)In remanding,
the plurality also concluded that the jury should be instructed on culpable
negligence manslaughter at retrial.(360)

B. Culpable Negligence Manslaughter

1. Language of the Statute

The mens rea required for Mississippi's version of involuntary
manslaughter is "culpable negligence."(361)
The terminology of "culpable negligence" was borrowed from civil law and
had no fixed criminal meaning when it was first adopted.(362)
Over time different jurisdictions have variously explained its meaning,
and the supreme court once remarked that "culpable negligence . . . is
an undefinable phrase,"(363) though it
is not unconstitutionally vague.(364)

It was recognized at common law that the carelessness
necessary for manslaughter was greater than that required for tort liability.(365)
The Mississippi statute was probably intended to do little more than codify
the common law, subject to the modifications expressed in other statutes.(366)
Cases have held that it is reversible error to give instructions that confuse
culpable negligence with either ordinary negligence(367)
or gross negligence.(368)

2. Judicial Elaboration

Mississippi cases have defined culpable negligence narrowly
as "the conscious and wanton or reckless disregard of the probabilities
of fatal consequences to others as a result of the wilful creation of an
unreasonable risk."(369) Such negligence
expresses "wanton disregard of, or utter indifference to, the safety of
human life."(370) This judicial definition
materially supplements the statute, and an instruction so defining culpable
negligence must be given.(371) When both
depraved heart murder and culpable negligence manslaughter instructions
are given, culpable negligence must not be defined as equivalent to "willfulness,"
because doing so blurs the distinction between murder and manslaughter.(372)

This restrictive formulation of culpable negligence apparently
first emerged in early twentieth-century opinions that expressed judicial
concern with the over-application of manslaughter to the growing number
of automobile deaths. The court was convinced that "juries are overinclined
to convict [in car accident cases] on proof of what is in fact no more
than simple negligence."(373) But notwithstanding
the language required in jury instructions, it is questionable whether
culpable negligence manslaughter requires strict proof of subjective indifference
to the safety of human life.(374)

3. Cases

The statute does not distinguish between different methods
of causing death, and the supreme court has emphasized that the same standard
for culpable negligence applies, regardless of the instrumentality inflicting
death.(375) Nevertheless, it is useful
to consider the application of culpable negligence in different classes
of cases.

Motor vehicle fatalities. Culpable negligence while
driving a motor vehicle has been found to support manslaughter liability
in many cases where the defendant's carelessness exceeded ordinary negligence.(376)
In a 1927 accident, a bus driver was speeding and driving carelessly while
flirting with a woman who was sitting next to him.(377)
The court affirmed a manslaughter conviction based on culpable negligence
where the bus driver crossed into the wrong lane and collided with the
victim on a curve.(378) The court has
also held that unlawful racing may constitute culpable negligence and has
held that both drivers may be liable for manslaughter when either driver
collides with an oncoming vehicle.(379)

But the supreme court has also expressed some reluctance
to find culpable negligence based on careless driving alone or upon a violation
of rules or statutes,(380) including the
criminal prohibition of driving while intoxicated.(381)
In Ducking v. State, a school bus driver ran over and killed a six-year-old
child who had gotten off the bus and was crossing the street in front of
the bus.(382) At the time of the accident,
the defendant had been instructed not to drive the bus; he was driving
the route in the wrong direction, thus requiring children to cross the
street; and he failed to count the children to verify that they had crossed
the road.(383) Nevertheless, the court
reversed a manslaughter conviction and concluded that the defendant's acts
of carelessness "amounted to simple negligence, but under no stretch of
the imagination could they be termed criminal or culpable negligence."(384)

Many cases have found that evidence of intoxication plus
dangerous acts is sufficient to support a conviction of culpable negligence
manslaughter.(385) But the cases are not
entirely consistent, and the appellate courts occasionally narrowly scrutinize
facts to find insufficient evidence of culpable negligence. For example,
in Evans v. State, the defendant collided with a stalled car that
was being moved off the road.(386) The
defendant had drunk at least five cans of beer before the collision, appeared
visibly intoxicated at the scene of the accident, and apparently took no
action to avoid the collision.(387) The
court emphasized that drinking alone did not support a finding of culpable
negligence,(388) and it found no additional
evidence of culpable negligence, though it concluded that the evidence
supported a conviction of the "lesser included offense of negligently killing
another while under the influence of intoxicating liquor."(389)

Such cases are likely to be rare now that the offense
of aggravated DUI for causing deaths negligently while driving under the
influence of intoxicants is both more easily proven (without the need for
culpable negligence) and can result in a more severe penalty than manslaughter.(390)
Prosecutors will have strong incentives to charge that crime rather than
manslaughter where deaths result from drunk driving.

Simple assault. The supreme court has held that
evidence of an assault including five or six open-handed blows was sufficient
to support a conviction of manslaughter.(391)
In addition, the supreme court affirmed a manslaughter conviction where
an inmate struck a fellow inmate twelve times in the chest as part of a
gang initiation, despite the victim's supposed consent to the assault.(392)
In contrast, the court of appeals has maintained that a simple assault
resulting in an unexpected death does not rise to the level of culpable
negligence.(393) Hence it found that a
barehanded blow to the neck that resulted in death was not sufficient evidence
of culpable negligence.(394) The court
of appeals nevertheless suggested that involuntary manslaughter liability
might result from the fact that death occurred during the commission of
a misdemeanor assault.(395)

Aggravated assault and killings with deadly weapons.
Because homicides resulting either from a deadly weapon or from an aggravated
assault generally support a conviction of depraved heart murder,(396)
and because the mens rea for depraved heart murder differs from that required
for culpable negligence manslaughter only in that it involves a higher
degree of recklessness,(397) it follows
that an aggravated assault or reckless shooting should provide sufficient
evidence of culpable negligence. The cases are in accord that inflicting
a fatal wound with a dangerous weapon supports an inference of culpable
negligence, though the courts have never expressly so stated.(398)
The supreme court has affirmed manslaughter convictions where a child died
as a result of severe beatings and cuttings(399)
and where a man died as the result of a severe beating.(400)

The supreme court has repeatedly affirmed culpable negligence
manslaughter convictions resulting from shooting deaths.(401)
It observed in a case where a defendant aimed a loaded gun at his nephew
during a scuffle:

It is hard to conceive of a clearer cut demonstration
of what is termed "culpable negligence" than for a person to point, aim,
and discharge a loaded pistol at another; and, where this negligence results
in the death of the human being at whom the pistol is pointed, the crime
of manslaughter is completely made out and established.(402)Even
where the victim allegedly had displayed a knife, the court observed, "[T]he
evidence is uncontradicted that [defendant] drew a gun and cocked it and
aimed it at [the victim]. We regard it as well within the jury's province
to consider this as a reckless indifference to human life."(403)
In Tait v. State, the supreme court reversed a depraved heart murder
conviction in an accidental shooting case but rendered a verdict of culpable
negligence manslaughter where the defendant cocked a gun and held it to
the victim's head.(404) Bringing a loaded,
cocked handgun that is later discharged during a fight for possession has
also been found to be culpable negligence.(405)
The court of appeals affirmed a manslaughter conviction where a shooting
death was the result either of a deliberate firing or the accidental firing
of a handgun during a scuffle.(406)

The supreme court has repeatedly indicated that a defendant's
erroneous belief that a gun is unloaded does not preclude a finding of
culpable negligence.(407) But the courts
do not impose strict criminal liability for shooting deaths, and an accidental
shooting that involves no risktaking above ordinary negligence will not
support a conviction.(408)

Culpable omissions. The supreme court has made
clear that reckless neglect of a child by parents can be culpable negligence.(409)
The court of appeals has been reluctant to impose manslaughter liability
for neglect, even under dangerous circumstances, where the violation of
a duty of care was not closely connected to the sequence of events leading
to the death. A problem with this approach is illustrated by Edwards
v. State, where the court reversed a culpable negligence manslaughter
conviction of the parents of a four-year-old who took the child, who could
not swim, camping on a sandbar on the Pearl River and then lost all track
of the child.(410) The lack of details
of the child's location preceding the drowning persuaded the court that
evidence was insufficient to support a finding of culpable negligence.(411)
Yet the evidence was vague precisely because neither the parents nor others
present were paying attention.(412) The
dissent argued forcefully that merely taking a child on such a trip was
not culpable negligence but that additional evidence showed dangers that
satisfied the standard for culpable negligence:

It was a reasonable probability and should have been anticipated
that in such an environment a four-year-old child could not only fall into
or enter the water but also be unretrievable for rescue and drown as a
result. The [defendants] recklessly disregarded this risk and the probability
of fatal consequences to their child as a result of their having willfully
placed him in an environment that they themselves created for him.(413)Other
unlawful acts. The supreme court has repeatedly held that causing death
while committing an unlawful act does not alone satisfy the requirement
of "culpable negligence."(414) Moreover,
it has emphasized that there must be a close causal connection between
the dangerous act and the resulting death.(415)

Nevertheless, the court of appeals concluded in Miller
v. State that a barehanded blow that unexpectedly caused death but
that did not itself evidence culpable negligence might be manslaughter
under the statute.(416) The court of appeals
reasoned that section 97-3-47 was meant to codify common law involuntary
manslaughter, and it observed that common law manslaughter liability arose
when death resulted either from an illegal act or from culpable negligence.(417)
The court of appeals followed a similar approach in Towner v. State,
where it held that regardless of intent, the firing of a concealed gun
was unlawful and the resulting death "at least" manslaughter, because it
occurred as the result of an unlawful act.(418)
The court of appeals was probably right as to the doctrine of manslaughter
at common law and partially right as to the original meaning of the statute.
In returning to the age of Blackstone, however, the court of appeals overlooked
both the original 1839 statutory scheme, which excluded homicide liability
for unintended barehanded killings,(419)
and the restriction of the statute by authoritative supreme court interpretations
to killings with culpable negligence.(420)
Accordingly, those decisions finding manslaughter established by an unlawful
act not otherwise culpably negligent should be regarded as aberrational.

IV. The Confusion of Mens Rea for Murder

and Manslaughter

The history of the common law classification of murder
and manslaughter suggests an important difference between the levels of
culpability required for the two crimes. This is confirmed by the significant
difference in punishment. In Mississippi, capital murder is punishable
by death;(421) murder by life imprisonment;(422)
and manslaughter by up to twenty years imprisonment.(423)

Nevertheless, a searching review of appellate decisions
reviewing murder and manslaughter convictions for unintentional killings
fails to reveal a coherent distinction between the mens rea required for
murder and that required for manslaughter. The supreme court's efforts
to define culpable negligence have successfully differentiated the mens
rea required for manslaughter from the carelessness sufficient for civil
tort liability. But those efforts have only served to confuse the relationship
of the culpable negligence required for manslaughter and the act eminently
dangerous and evincing a depraved heart required for murder. The judicial
definition of culpable negligence as requiring "conduct evincing a reckless
disregard for the value of human life or the conscious or wanton disregard
of, or utter indifference to, the safety of another"(424)
closely approaches the language of the statute defining depraved heart
murder.

This failure to articulate different standards for murder
and manslaughter produces two undesirable results. First, because jury
instructions are either inadequate or confusing, they encourage differing
verdicts in similar cases. Because the substantive legal standard is not
clear, it is not subject to uniform application by appellate courts, and
the appellate decisions reviewing jury verdicts are likewise inconsistent.
Second, the appellate decisions regarding the need and desirability of
appropriate instructions are in conflict.

A. Inconsistent Evaluations of Evidence

The inconsistent treatment of unintentional killings by
both juries and appellate courts is particularly clear in the reported
decision of cases since 1988 involving unintended shooting deaths. In Wheeler
v. State, the defendant fired a handgun repeatedly while fighting police
for possession of it.(425) The jury convicted
the defendant of capital murder.(426)
The supreme court affirmed a murder conviction but narrowly overturned
a capital murder conviction.(427)

In Clark v. State, the defendant shot through a
locked steel door during an argument, killing the victim.(428)
The jury convicted of murder, and the supreme court affirmed.(429)
It further held that omission of a requested instruction on culpable negligence
manslaughter was not error because the evidence was insufficient to support
a finding of culpable negligence.(430)
In Blanks v. State, where the defendant claimed he shot and killed
by accident, the jury convicted of manslaughter but not depraved heart
murder.(431) In affirming, the supreme
court found no error in prosecuting the homicide as murder and concluded
the evidence was sufficient to sustain either a murder or manslaughter
conviction.(432)

In Tait v. State, where the defendant held a cocked
gun to the victim's head, the jury convicted of murder.(433)
But the supreme court reversed, holding these facts inadequate as a matter
of law to support murder.(434) In Towner
v. State, the jury convicted of manslaughter where the shooting death
resulted either from deliberate firing of a handgun or an accidental firing
during a scuffle.(435) The court of appeals
affirmed, holding that no accident instruction was required or proper.(436)

In these cases juries have convicted defendants who claimed
shooting deaths were unintended of capital murder, murder, and manslaughter.(437)
To be sure, jurors' differing resolution of issues of credibility as well
as their different conclusions about risk and culpability may explain why
one killing was found to be murder and another manslaughter. But appellate
review of the verdicts appears no more predictable in its outcome. In these
cases the supreme court has affirmed convictions of murder finding the
evidence sufficient; reversed convictions of murder finding the evidence
insufficient as a matter of law; rendered a verdict of manslaughter finding
the evidence sufficient as a matter of law; affirmed convictions of manslaughter
finding the evidence sufficient as a matter of law; and approved the omission
of manslaughter instructions finding the evidence of manslaughter insufficient
as a matter of law.

B. Inconsistent Law Governing Jury Instructions

Manslaughter is a lesser included offense of murder.(438)
As the supreme court has explained, "Depraved heart murder and culpable-negligence
manslaughter are distinguishable simply by degree of mental state of culpability.
In short, depraved-heart murder involves a higher degree of recklessness
from which malice or deliberate design may be implied."(439)

Accordingly, there is no error in giving instructions
on both depraved-heart murder and culpable negligence manslaughter.(440)
On the contrary, the supreme court has repeatedly approved giving both
instructions in cases of unintentional criminal homicide in order to permit
the jury, informed of different levels of culpability, to return a verdict
for the most appropriate crime.(441) In
such cases it has emphasized the need for careful definition of culpable
negligence in order to avoid confusing the jury.(442)

From the court's reasoning, it follows that culpable negligence
manslaughter instructions should be routinely given in all trials for depraved
heart murder. First, a "defendant is entitled to have jury instructions
given which present his theory of the case."(443)
A defendant should be able to avoid murder liability for an unintentional
homicide by persuading the jury that he or she was guilty of culpable negligence
but lacked the depraved heart required for murder. "In homicide cases,
the trial court should instruct the jury about a defendant's theories of
defense, justification, or excuse that are supported by the evidence, no
matter how meager or unlikely, and the trial court's failure to do so is
error requiring reversal of a judgment of conviction."(444)
Second, the failure to permit a jury to consider liability for a less serious
offense requiring a less blameworthy form of risktaking can create strong
pressure to convict the defendant of the more serious crime.(445)
Depriving jurors of the option of convicting of culpable negligence manslaughter
thus aggravates the risk of wrongful convictions of depraved heart murder
in unsympathetic cases--and cases involving unsympathetic defendants.

Requiring lesser included offense instructions on culpable
negligence manslaughter is consistent with the suggestion in an older case
that a defendant prosecuted for deliberate design murder has a right to
have the jury consider lesser manslaughter culpability based on culpable
negligence.(446) And it is strongly supported
by the more recent holding that drunk drivers prosecuted for culpable negligence
manslaughter were entitled to instructions on the (then) lesser included
offense of aggravated DUI.(447)

Nevertheless, the supreme court has not consistently required
culpable negligence manslaughter instructions in depraved heart murder
prosecutions. In Sanders v. State, the defendant struck the victim
once on the head with a hammer.(448) The
defendant later died.(449) The jury was
instructed on both deliberate design murder and depraved heart murder.(450)
The trial court refused to give a requested instruction on culpable negligence
manslaughter.(451) Affirming the murder
conviction, Justice Mills found no error in the failure to give the requested
instruction.(452) Justice Mills apparently
viewed the evidence as supporting a finding of either deliberate design
or of a reckless disregard far worse than culpable negligence.(453)
But in doing so, he confused the issue of whether the evidence was sufficient
to support a jury verdict of murder with the issue of whether the evidence
could also have supported a verdict of manslaughter. To justify omitting
the instruction, he concluded that the evidence would not have been sufficient
to support a finding of culpable negligence: "Viewing the evidence and
all reasonable inferences therefrom, in a light most favorable to Sanders,
a reasonable jury could not have found him guilty of mere culpable negligence."(454)

The court of appeals reached a similar result in Goff
v. State.(455) While the defendant's
wife was on a phone outside a bar, the defendant observed the victim bump
into her, knock her to the ground, and call her a name.(456)
She was not seriously injured.(457) The
defendant followed the victim and admitted he assaulted him.(458)
There was a dispute as to whether the defendant stomped on the victim's
head after knocking him to the ground.(459)
The trial court denied the defendant's request for a culpable negligence
instruction, and the jury convicted him of depraved heart murder.(460)
The court of appeals affirmed, opining that "there was no evidence to submit
the case to the jury on the theory of culpable negligence, and denying
the instruction was not error."(461)

The legal reasoning in these opinions defies logic, for
evidence sufficient to support the greater offense must (by definition)
be sufficient to support the lesser included offense. Speculation that
certain risktaking is too great to be merely negligent is questionable,
as it seems to rest on the premise that an intentional act having unintentional
consequences cannot be culpable negligence.(462)
This premise would eliminate most if not all cases of culpable negligence,
since acts or omissions causing death are always preceded by intentional
conduct. Moreover, the relevant manslaughter statute expressly covers deaths
caused by any "act, procurement, or culpable negligence"(463)
and intentional acts, including assaults, have repeatedly resulted in convictions
for culpable negligence manslaughter.(464)

The results in cases like Sanders and Goff
appear to be motivated by the judicial desire to save the state the inconvenience
and costs of a new trial. But the courts' rationalization of these decisions
has introduced theoretical incoherence into the law of jury instructions
to the extent that the courts have reasoned that evidence sufficient to
support a finding of depraved heart murder is insufficient to support a
finding of culpable negligence. Moreover, these decisions seriously erode
the role of the jury as factfinder of material elements of mens rea. A
jury, properly instructed, not appellate courts, should determine the elements
of the offense, including the appropriate level of culpability.

Because lesser included offense instructions materially
assist the jury's determination of the appropriate mens rea, there is no
good reason not to give such instructions when requested by either the
state or the defendant. The supreme court should resolve all uncertainty
and follow those cases approving lesser included culpable negligence instructions.
It should specifically overrule Clark(465)
and Sanders(466) and declare that
the failure to give culpable negligence manslaughter instruction in depraved
heart murder cases, when requested, is reversible error. When a defendant
does not request such instruction, however, the trial court's failure may
not be reversible error.(467)

In cases prosecuted on a theory of deliberate design,
a lesser included offense instruction on culpable negligence manslaughter
need not be given.(468) But if the state
introduces alternative theories of deliberate design and depraved heart,
then a culpable negligence instruction should be given.(469)
For example, in Hurns death resulted from an aggravated assault
during which the defendant might or might not have had the intent to kill.(470)
The jury was instructed on both deliberate design and depraved heart murder
but not on culpable negligence manslaughter.(471)
The court affirmed the murder conviction despite the omission of a requested
instruction on culpable negligence manslaughter, remarking that "evidence
in this case shows intentional, not negligent, acts committed by [defendant]."(472)
But the court did not explain how it could read the record on appeal to
conclude that the jury had imposed murder liability under a theory of deliberate
design as opposed to extreme recklessness. If the court cannot determine
that a verdict was based on deliberate design, then the omission of a requested
culpable negligence manslaughter instruction should be reversible error.

Conclusion

While Mississippi statutes differentiate between depraved
heart murder and culpable negligence manslaughter, the judicial opinions
construing these statutes have not coherently distinguished between the
mens rea elements for murder and manslaughter. Nor have the appellate courts
followed a consistent practice as to when the determination of these elements
should be left to the factfinder. This has resulted in theoretical uncertainty
about the relationship of depraved heart murder and culpable negligence
manslaughter and in practical confusion about the evidence necessary to
support convictions of either crime.

Aggravated by the courts' flagging attention to precedent,
the law regulating jury instructions and appellate review of evidence in
unintentional homicide cases presently fails to achieve a minimal level
of coherence or to offer articulable rules of general application that
can be applied uniformly by the courts. Even if the decisions are not based
on such individual considerations that they are vulnerable to constitutional
challenge,(473) the prevailing confusion
and uncertainty is undesirable as a matter of law, justice, and policy.

A. Statutory Reform

The prevailing confusion provides an opportunity for those
seeking a comprehensive revision of the state's homicide statutes.(474)
One option would be to follow the Model Penal Code and other modern authority
and define murder as requiring an actual subjective awareness of risk of
death.(475) Legislation could then differentiate
involuntary manslaughter from unintentional murder in one of two ways.
First, the legislature could define manslaughter as not requiring actual
awareness of risk of death. Second, it could distinguish murder from manslaughter
by requiring additional aggravating elements for murder or by specifying
that the risktaking for murder evidence a more blameworthy callousness
or indifference. If reformers require conscious risktaking for manslaughter,
then legislation should include a new crime, comparable to the Model Penal
Code's negligent homicide, in order to cover those homicides, previously
treated as murder or manslaughter, that occur without convincing proof
of awareness of risk.

The mid-twentieth century preference for subjective standards
of criminal culpability offers a convenient way of distinguishing murder
and manslaughter. But requiring subjective awareness of risk raises philosophical
and practical issues.(476) And to resort
to a subjective standard would represent a departure from longstanding
authority while conflicting with the strong judicial preference for objective
standards of homicide culpability announced in other contexts.(477)

Short of comprehensive revision of homicide statutes,
the legislature could do much to help clarify the application of existing
statutes through more modest amendments to the existing code. First, the
legislature should clean up the code by repealing those statutes that have
been unnecessary since 1857. These include the statutes that by their terms
duplicate the elements of involuntary(478)
and voluntary(479) manslaughter. They
also include statutory forms of manslaughter that require a culpable mental
state worse or higher than culpable negligence.(480)
Such unnecessary statutes probably include all the manslaughter statutes
except the general voluntary and involuntary manslaughter statutes, the
statute imposing manslaughter liability on owners of dangerous animals,(481)
and the statute criminalizing causing death of unborn quick children and
causing miscarriage or stillbirth of embryos and fetuses.(482)

Second, the legislature could eliminate the language of
"without malice" from the voluntary manslaughter statute to make clear
that the state bears no burden of disproving malice and that manslaughter
is both legally and literally included in the definition of murder.(483)
The residual ("[e]very other killing") language of the involuntary manslaughter
statute should also be repealed to remove any suggestion that the statute
might not apply when another does.(484)

B. Judicial Clarification

Unintentional homicide statutes similar to Mississippi's
have proven remarkably durable and resisted waves of reform. Florida, Minnesota,
New Mexico, Oklahoma, and South Dakota(485)
preserve unintentional murder statutes similar to Mississippi's. Furthermore,
Florida and Oklahoma retain statutes defining involuntary manslaughter
as homicide resulting from the defendant's "act, procurement, or culpable
negligence."(486)

Mississippi appellate courts have more than 160 years
experience in interpreting the depraved heart murder and culpable negligence
manslaughter statutes. They adapted them to altered circumstances and are
capable of resolving the current confusion by appropriate judicial clarification.
The courts must explain the difference between the risktaking required
for unintentional murder and manslaughter. While they could do so in any
number of ways consistent with their judicial authority to interpret and
clarify legislation, the simplest way would be to modify the current definition
of culpable negligence, which already finds its source in case law. Rather
than requiring conscious disregard of probable fatal consequences or indifference
to the safety of human life,(487) the
court might redefine culpable negligence as either acts (with or without
awareness) that create a high probability of death or acts accompanied
by the conscious awareness of the probability of serious injury.

This modest redefinition would differentiate culpable
negligence from the higher risktaking evidencing a disregard of life required
for murder. The difference could be helpfully reinforced by appropriate
jury instructions.(488) The instructions
should eliminate once and for all any reference to "malice" in keeping
with the language of the statutes, the intent of the legislatures in 1839
and 1857, and common sense.

Equally important, appellate courts should leave the determination
of the level of culpability to the jury. They should require culpable negligence
manslaughter instructions in all prosecutions for depraved heart murder.
But they should not reverse verdicts supported by sufficient evidence when
appropriate instructions have been given.

1. * Professor of Law, the
University of Mississippi School of Law. Research funding for this work
was underwritten by the National Center for Justice and the Rule of Law
at the University of Mississippi School of Law, which is supported by a
grant from the Office of Justice Programs at the United States Department
of Justice (2000-DD-VX-0032).

6. 5Id. § 63-11-30(1)
(1996 & Supp. 2001). The code gives the statute the general title "Operation
of vehicle while under the influence of intoxicating liquor, drugs or controlled
substances, or other substances impairing ability to operate vehicle .
. . ." Id. § 63-11-30. The offense consists of driving while
intoxicated and causing either death or certain injuries. Id.;
seeinfra
notes 181-89 and accompanying text. The court has referred to the offense
as "aggravated DUI." Mayfield v. State, 612 So. 2d 1120, 1126 (Miss. 1992).

Although this article considers the offense in connection
with homicide crimes, the supreme court has concluded that aggravated DUI
is not a homicide in important respects. Mayfield, 612 So. 2d at
1126-28. It reasons that the statute is principally designed to punish
driving while intoxicated, not homicide, and that the punishment is increased
for accidents resulting in certain injuries or death. Id. at 1127.
According to Justice McRae, a single act of intoxicated driving resulting
in multiple injuries or death constitutes a single offense. Id.
at 1128. Justices Banks and Roberts dissented with respect to this part
of the opinion, id. at 1130, and Justice Banks rightly challenged
the court's reliance on the title of the statute as evidence of the legislature's
intention. Id. at 1130-31 (Banks, J., concurring in part and dissenting
in part).

done without any design to effect death by any person
engaged in the commission of any felony other than rape, kidnapping, burglary,
arson, robbery, sexual battery, unnatural intercourse with any child under
the age of twelve (12), or nonconsensual unnatural intercourse with mankind,
or felonious abuse and/or battery of a child in violation of subsection
(2) of Section 97-5-39, or in any attempt to commit such felonies.Miss.
Code Ann. § 97-3-19(1)(c) (2000). The language "without any design"
makes explicit the fact that the state has to prove no mens rea with respect
to the killing other than the mens rea and other elements of the felony;
it is not intended to require the state to prove the absence of any design.
The listed felonies are excluded because they are predicate felonies for
capital murder in Mississippi. Capital murder includes a killing without
authority of law:

(e) When done with or without any design to effect death,
by any person engaged in the commission of the crime of rape, burglary,
kidnapping, arson, robbery, sexual battery, unnatural intercourse with
any child under the age of twelve (12), or nonconsensual unnatural intercourse
with mankind, or in any attempt to commit such felonies;

(f) When done with or without any design to effect death,
by any person engaged in the commission of the crime of felonious abuse
and/or battery of a child in violation of subsection (2) of Section 97-5-39,
or in any attempt to commit such felony.Id. § 97-3-19(2)(e),
(f).

8. 7 This common law doctrine
is partly codified in Mississippi, which defines murder to include a killing
"done with deliberate design to effect the death of the person killed,
or
of any human being." Id. § 97-3-19(1)(a) (emphasis added);
see
Ross v. State, 131 So. 367, 368 (Miss. 1930) (holding that "the accidental
killing of a person other than the one intended is murder").

Murder is when a man of sound memory, and of the age of
discretion, unlawfully killeth within any County of the Realm any reasonable
creature in rerum natura under the kings peace, with malice fore-thought,
either expressed by the party, or implied by law, so as the party wounded,
or hurt, &c. die of the wound, or hurt, &c. within a year and a
day after the same.3 Edward Coke, Institutes *47.

10. 9 4 Blackstone, supra
note 8, at *198.

11. 10 LaFave says that
after manslaughter arose as a separate form of felonious homicide, the
defining element of "malice aforethought" for murder "required at least
an intent to kill, plus perhaps an element of hatred, spite or ill-will."
Wayne R. LaFave, Criminal Law § 7.1(a), at 654 (3d ed. 2000). Dressler
makes a similar point. Joshua Dressler, Understanding Criminal Law §
31.02[B], at 503-04 (3d ed. 2001) ("In very early English history, the
word `aforethought' probably required that a person think about, or premeditate,
the homicide long before

the time of the killing.").

It is questionable whether other early societies required
intent for homicide liability. Cf.Exodus 21:12 (Revised
Standard Version) ("Whoever strikes a man so that he dies shall be put
to death. But if he did not lie in wait for him, but God let him fall into
his hand, then I will appoint for you a place to which he may flee.");
Deuteronomy
19:4-5 (Revised Standard Version) ("This is the provision for the manslayer,
who by fleeing there may save his life. If any one kills his neighbor unintentionally
without having been at enmity with him in time past--as when a man goes
into the forest with his neighbor to cut wood and his hand swings the axe
to cut down a tree, and the head slips from the handle and strikes his
neighbor so that he dies--he may flee to one of these cities and save his
life. . . ."); Numbers 35:9-11 (Revised Standard Version) ("And
the Lord said to Moses, `Say to the people of Israel, When you cross the
Jordan into the land of Canaan, then you shall select cities to be cities
of refuge for you, that the manslayer who kills any person without intent
may flee there.'").

12. 11 LaFave, supra
note 10, § 7.1(a), at 654-55.

The judges still continued to say that murder is committed
by one who unlawfully kills another "with malice aforethought," now however
adding the phrase "express or impled," the word "implied" covering the
four situations just described wherein literally there exists no premeditated
intent to kill.Id. I am not sure of the origin of this theory but
it is fully articulated by Sir James Fitzjames Stephen who summarized the
history of the caselaw: "First malice prepense is half accidentally
made the test of murder. It is then defined to mean a deliberate premeditated
design to kill or hurt." 3 James F. Stephen, A History of the Criminal
Law of England 63 (London, MacMillan 1883). Stephen claimed that malice
was further enlarged by the presumption in fact that malice existed in
the absence of evidence of provocation. Id. He argued that this
presumption evolved into an irrebuttable legal presumption. Id.
As a result, the legal content of malice became provided largely by the
development of the doctrine of provocation.

13. 12 The California Penal
Code defines murder as "the unlawful killing of a human being, or a fetus,
with malice aforethought." Cal. Penal Code § 187 (West 1999). It then
provides:

Such malice may be express or implied. It is express when
there is manifested a deliberate intention unlawfully to take away the
life of a fellow creature. It is implied, when no considerable provocation
appears, or when the circumstances attending the killing show an abandoned
and malignant heart.Id. § 188.

The California statute modifies the common law in classifying
the killing of a fetus as murder. Id. At common law the killing
of a fetus was not murder; but if the child was born alive and died after
birth of injuries inflicted before birth--with malice aforethought--it
would qualify as murder. See 4 Blackstone, supra note 8,

at *198 ("To kill a child in its mother's womb, is now
no murder, but a great misprision: but if the child be born alive, and
dieth by reason of the potion or bruises it received in the womb, it seems,
by the better opinion, to be murder in such as administered or gave them.").
Lord Hale maintained that even under such circumstances, the resulting
death was not murder. Williams v. State, 561 A.2d 216, 217-18 (Md. 1989)
(citing 1 Sir Matthew Hale, Historia Placitorum Coronae: The History of
the Pleas of the Crown 433 (P.R. Glazebrook ed., Prof'l Books Ltd. 1987)
(1736)). But Blackstone's view has prevailed in most American jurisdictions.
See,
e.g., Williams, 561 A.2d at 219 (upholding defendant's conviction
for manslaughter of baby which was born alive but died hours later because
of injury inflicted on mother).

14. 13 Murder under Anglo
Saxon jurisprudence denoted a particular kind of secret killing, originally
where the killer hid the body and later where the killer attacked secretly
or concealed his identity from others. Thomas Andrew Green, Verdict According
to Conscience: Perspectives on the English Criminal Trial Jury 1200-1800,
at 53 (1985). Whether intent was required at first is not known, but Green
suggests that liability could be mitigated if the homicide was unintentional.
Id.
at 51. In any event, stealth, not premeditation, was the operative element.
Id.
at 53. For example, Green cites a case from 1400 where a defendant who
stabbed a victim in the back after an argument was convicted of murder.
Id.
at 57.

Baker maintains that "the principle of automatic liability
was applied to the man whose conduct killed another" and concludes that
the requirement of mens rea emerged through pardons that became available
for accidental or excusable homicides. J.H. Baker, An Introduction to English
Legal History 601 n.33 (3d ed. 1990). While excuses included self-defense
and "misadventure," I am aware of no cases where murder resulting from
a hostile and unprovoked assault was pardoned because the death was unintended.
By the time of Blackstone, homicide
per infortunium or misadventure
was narrowly defined as:

[W]here a man, doing a lawful act, without any intention
of hurt, unfortunately kills another: as where a man is at work with a
hatchet, and the head thereof flies off, and kills a stander-by; or where
a person, qualified to keep a gun, is shooting at a mark, and undesignedly
kills a man: for the act is lawful, and the effect is merely accidental.4
Blackstone, supra note 8, at *182 (footnote omitted). Blackstone
is obviously citing to
Deuteronomy. See supra note 10.

While Green has provided the most searching and plausible
account of the early origins of murder (and malice aforethought), much
still remains unknown. See Green,
supra, at 51-53. Part of
the problem arises from the difficulty of projecting contemporary norms
onto the past. Green, like others, assumes that thirteenth-century jurors
distinguished between intended and unintended consequences, but this may
be a more modern construct. See id.

An additional difficulty arises from the instrumental
assumptions that murder developed in close association with murdrum.
Id.Murdrum
was a fine for secret killings imposed after the conquest.
Id. at
51. It is unclear whether it was limited to intentional killings.
Id.
at 53. "In some counties a
murdrum was exacted by custom in case
of accidental death; Bracton regarded this as an abuse, and . . . it

was abolished." 2 Frederic Pollock & Frederic William
Maitland, The History of English Law Before the Time of Edward I, at 487
(Cambridge Univ. Press 1923) (2d ed. 1898). The background assumption in
instrumental theories is that before the Conquest, special royal jurisdiction
for other homicides (where the identity of the killer was known) was unnecessary
because the kin would obtain relief through the wergild (and the
king would obtain his wite). Green,
supra, at 51. Murder,
in contrast, threatened to disrupt the normal process of composition and
could lead to feuds. Id. After the Conquest, the crown assumed a
monopoly over all felonies extending liability to all homicides, not just
murder. Id. at 50. And the crown imposed a special fine of murdrum
on the community that was unable to prove that the homicide victim was
not Norman. Id. at 51.
See generally 3 Stephen, supra
note 11, at 31. But as Green shows, the community's resistance to imposing
the death penalty on all killers ultimately led to the emergence of distinct
principles of excuse and to the separate crime of manslaughter. Green,
supra,
at 52.

Nevertheless, instrumental explanations do not account
for all important features of Anglo Saxon homicide law and may not fully
explain the community's continuing abhorrence for certain forms of homicide
after the Conquest, and to its concomitant resistance to imposing capital
punishment on other forms of homicide. Id. at 51-53. It seems implausible,
for example, that murder became the worst form of homicide because of the
resentment of fines imposed under Englishry, as Stephen claimed. 3 Stephen,
supra
note 11, at 40. Similarly, Green demonstrated that the community abhorrence
of secret killings predated Englishry and explained the community's reluctance
to convict other killers. Green, supra, at 53.

The deep roots of such abhorrence are not clear. Secret
killings (especially those in which a body was concealed in the earth)
have been viewed with special horror in other contexts. Cain's fratricide
was aggravated by spilling his brother's blood on the ground.
Genesis
4:10 (Revised Standard Version) ("The voice of your brother's blood is
crying to me from the ground."). The account of Moses killing the Egyptian
included the significant detail that he hid the corpse in the sand.
Exodus
2:12 (Revised Standard Version). These acts of concealing the victim's
body in the ground literally polluted the earth. And by preventing the
rituals necessary to propitiate the spirit of the dead and assure its future,
such concealing may have offended deep social norms. Such norms were the
source of the central conflict in Antigone, and residues of them
may survive in the law's prohibition of "Christian burial" speeches to
elicit confessions or in the horror provoked where defense lawyers obtained
knowledge of the location of the hidden bodies of homicide victims.

In any event, Green concludes that in the fourteenth century
the threshold meaning of malice aforethought was "mere deliberateness,"
though the term could also mean "true premeditation." Green, supra,
at 56.

15. 14 Green, supra
note 13, at 51. It is generally assumed that the various

forms of homicide discussed by Bracton (d. 1268) were
felonious, except those that he specifically stated did not impose liability.
But his text is ambiguous and difficult to reconstruct. He divided homicide
into unintentional (casu) and intentional ([v]oluntate),
and concluded that unintentional homicide established liability only when
the actor was engaged in an improper act. 2 Bracton, On the Laws and Customs
of England 341 (Samuel E. Thorne trans., George E. Woodbine ed., 1968).
He further divided intentional homicide into "homicide committed openly
and in the presence of many bystanders" and "homicide committed in secret,
in no one's presence, to no one's knowledge, and in no one's sight or hearing,
which is called murder [murdrum]." Id. at 378-79.

As the law developed, Baker concludes that the main form
of felonious homicide besides murder became "chance medley." Baker, supra
note 13, at 601. This, he suggests, was a corruption of chaude mêlée
(literally "hot conflict"). Id. at 601 n.40. Accordingly, malice
aforethought would have served functionally to distinguish those killings
that were not the result of a sudden or spontaneous quarrel. The clearest
refutation of such a quarrel would, of course, have been evidence of longstanding
ill will by the killer towards the victim. But the functional distinction
was not coherent.Malice was not easy to define, and even harder to prove;
often it had to be implied from the facts surrounding the killing. So long
as there was a general evil intent, an intent to injure someone, there
was no need to prove a specific intent to kill the deceased. Moreover,
a chance fight, if unprovoked, might itself be murderous.Id. at
602.

16. 15 Green, supra
note 13, at 56-57. Green makes the important observation that the distinction
between injuring and killing may have held less significance "in a day
when fights began easily and led often to death due to sepsis or other
results of poor medical techniques." Id. at 51.

To this we might add, however, that we have little way
of gauging the faith of patients and their kin in such medical techniques
that would affect their judgment of responsibility for the resulting death.
In a world still haunted by occult powers, residues of convictions that
aggressive emotions like hatred and jealousy themselves operated to bring
about harm could also have provided content to "malice aforethought."

17. 16 Blackstone defined
express malice as:[w]hen one, with a sedate deliberate mind and formed
design, doth kill another: which formed design is evidenced by external
circumstances discovering that inward intention; as lying in wait, antecedent
menaces, former grudges, and concerted schemes to do him some bodily harm.4
Blackstone, supra note 8, at *199.

18. 17 "Also, if even upon
a sudden provocation one beats another in a cruel and unusual manner, so
that he dies, though he did not intend his death, yet he is guilty of murder
by express malice; that is, by an express evil design, the genuine sense
of malitia." Id.

For Blackstone the disproportionate response to the provocation
established malice that prevented the killing from being mitigated to manslaughter.
Id.
at *200. When the Mississippi Code provided generally that provoked killings
were excusable homicide, see Miss. Code Ann. § 97-3-17(b) (2000),
the legislature nevertheless provided that a killing in a cruel or unusual
manner provided an element for manslaughter. See id. § 97-3-35
("The killing of a human being, without malice, in the heat of passion,
but in a cruel or unusual manner, or by the use of a dangerous weapon,
without authority of law, and not in necessary self-defense, shall be manslaughter.").

19. 18 4 Blackstone, supra
note 8, at *199-200. In such circumstances, a lesser crime would not be
appropriate. Id.

20. 19Id. at *200.
Blackstone said it was murder "because of the unlawful act, the
malitia
praecogitataor, or evil intended beforehand." Id.

21. 20Id. at *199.
Blackstone also gave the example of a park-keeper who tied a boy to a horse's
tail and dragged him through the park because he stole some wood. Id.

22. 21See id. at
*200. ("Also, in many cases where no malice is expressed, the law will
imply it: as, where a man wilfully poisons another; in such a deliberate
act the law presumes malice, though no particular enmity can be proved.").

23. 22 3 Coke, supra
note 8, at *51. Stephen could not understand why such malice was "implied"
for Coke, arguing that if the unprovoked killing was intended, then it
was accompanied by express malice, but if it was unintentional, then there
was no malice. 3 Stephen, supra note 11, at 55.

24. 23 3 Coke, supra
note 8, at *52.

25. 24See 3 Stephen,
supra
note 11, at 56. Stephen thought that Coke's omission was surprising because
Coke had included extreme recklessness as a form of mens rea for liability
under the mayhem statute. Id. And Stephen was convinced that the
omission was not grounded on a defensible moral principle: "As far as wickedness
goes it is extremely difficult to suggest any distinction worth taking
between an intention to inflict bodily injury and reckless indifference
whether it is inflicted or not." Id.

26. 25 Hale divided malice
into "malice in fact" and "malice in law, or ex praesumptione legis,"
and defined the former: "Malice in fact is a deliberate intention of doing
some corporal harm to the person of another." 1 Hale, supra note
12, at 451. He further divided implied malice into three kinds:

1. When the homicide is voluntarily committed without
provocation. 2. When done upon an officer or minister of justice. 3. When
done by a person, that intends a theft or burglary.Id. at 455. The
second two categories correspond to killings while resisting lawful arrests
and felony murder.

As had Coke, Hale assumed that implied malice required
an intent to kill. This was evident both in his definition that the homicide
be "voluntarily committed" and in his discussion of cases. Id. Indeed,
Hale apparently never questioned the need for such intent, for his case
analysis focused on elaborating circumstances that failed to establish
mitigating provocation. Id. at 456-57. In most of the cases discussed
by Hale, the killers respond to legally insufficient provocation with blows
patently intended to kill or seriously injure. See id. But in one
case a woman in a tavern directed insulting language at the defendant who
threw a broom staff at her from some distance. Id. at 456. The broom
hit her head and killed her. Id. The justices concluded easily that
the words were not sufficient provocation and that the homicide would be
murder if caused by a firearm or sword. Id. at 456-57. But they
could not agree

whether this striking, that was so improbable to cause
death, [would] not alter the case; the judges were not unanimous in it,
and in respect, that the consequences of a resolution on either side was
great, it was advised the king should be moved to pardon him, which was
accordingly done.Id. at 457. Though the case appears at first as
though there was considerable authority for finding that the unintended
killing could qualify as murder, the result (a pardon for excusable homicide
rather than mitigation to manslaughter)

strongly suggests that the consensus was that a genuinely
unintended death should not qualify as murder. It is not clear whether
Hale thought the sex of the victim was important because it aggravated
the affront of the insulting words at issue, because it aggravated the
disproportionate response of the defendant to the insult, or because it
reduced the inference that the defendant's assault was designed to initiate
an affray likely to result in death.

This result of the case was surprising if the defendant
intended to strike the victim with the broom (an assault), for Coke failed
to distinguish between the severity of bodily injury intended. See
3 Stephen, supra note 11, at 57 (criticizing Coke for promoting
as murder the death that resulted from any unlawful act and any intent
to injure, not just intent to inflict serious injury). Moreover, it was
well- established that even an unintended death resulting from an unlawful
act (like assault) would be manslaughter. 4 Blackstone, supra note
8, at *183. The result is, accordingly, anomalous and may possibly be explained
either by the court's uncertainty as to whether the throwing of the broom
evidenced an attempt to strike the victim or by the court's lack of sympathy
for the victim, a woman and possibly a prostitute.

27. 26 4 Blackstone, supra
note 8, at *200.

28. 27Id.

And if one intends to do another felony, and undesignedly
kills a man, this is also murder. Thus if one shoots at A and misses him,
but kills B, this is murder; because of the previous felonious intent,
which the law transfers from one to the other. The same is the case where
one lays poison for A; and B, against whom the prisoner had no malicious
intent, takes it, and it kills him; this is likewise murder. So also if
one gives a woman with child a medicine to procure abortion and it operates
so violently as to kill the woman, this is murder in the person who gave
it.Id. at *200-01.

29. 28Id. at *201.

30. 29Id. Blackstone
claimed that this presumption shifted the burden of production of evidence,
if not the ultimate burden of proof: "And all these circumstances of justification,
excuse, or alleviation, it is incumbent upon the prisoner to make out,
to the satisfaction of the court and jury . . . ." Id.; cf.
Phillips v. State, 1999-KA-01276-SCT, ¶¶ 8-20, 794 So. 2d 1034,
1036-39 (Miss. 2001) (holding voluntary manslaughter instruction properly
denied in murder trial in absence of defendant's testimony or other evidence
supporting theory and finding malice may be inferred from use of deadly
weapon).

31. 30 Blackstone's claim
was challenged by nineteenth-century commentators. Cooley remarked: "As
the majority of homicides are not, in fact, malicious, but occur
through misadventure, or under circumstances which would reduce the offence
to manslaughter, a legal presumption of malice seems inconsistent with
the general doctrines of the criminal law, as well as with humanity." 4
William Blackstone, Commentaries on the Laws of England *395 n.22 (Thomas
M. Cooley ed., Chicago, Callahan & Co. 3d ed. 1884) (Cooley's comment).

Blackstone's successor as Vinerian lecturer likewise insisted:

That the destruction of life may amount to murder it must
now be the effect of malice aforethought,
malitia praecogitata.
By malice in the legal sense is not meant any personal grudge, or private
malignity of one man against another, but
malus animus, deliberate
and habitual depravity, which may influence the action, whether it be done
irâ,
vel
odio, vel causâ lucri. The general notion has been already
settled by the exceptions from it: the privation of life neither by misfortune,
nor by justice nor by necessity of self-defence, nor by the sudden violence
of passion will be accounted murder.1 Robert Chambers, A Course of Lectures
on the English Law Delivered at the University of Oxford 1767-1773, at
402-03 (Thomas M. Curley ed., 1986).

Despite his acceptance of the negative definition of malice
as unprovoked homicide, Chambers assumed that malice continued to require
a real intent to kill. He discussed Hale's case where the defendant had
thrown a broom at a woman and killed her after she insulted him. Seesupra
note 25. Chambers concluded that this would be an easy case in his day:
"I believe in the present state of opinions, both popular and juridical,
no difficulty would have been raised. The provocation was sudden, the resentment
petulant, and the consequence not intended." 1 Chambers,
supra,
at 403-04.

32. 31 This paradox assumes
constitutional dimensions in the United States because the Supreme Court
has held that due process both requires states to prove all elements of
an offense beyond a reasonable doubt (including mental elements) and prohibits
states from shifting the burden of proof on such elements. Francis v. Franklin,
471 U.S. 307, 313 (1985); see U.S. Const. amend. XIV, § 1 ("[N]or
shall any State deprive any person of life, liberty, or property, without
due process of law . . . ."). As a result, even when a killer aimed a gun
at a victim through a door and pulled the trigger causing death, when the
killer is charged with a form of murder that includes the element of intent,
the State must prove the killer's intent and may neither direct the jury
to find such intent from the resulting death nor employ jury instructions
that include language like "presume" that may confuse the jury as to the
proper burden of proof on the issue of intent. Franklin, 471 U.S.
at 313 ("The Due Process Clause of the Fourteenth Amendment . . . prohibits
the State from using evidentiary presumptions in a jury charge that have
the effect of relieving the State of its burden of persuasion beyond a
reasonable doubt of every essential element of a crime.").

33. 32 Blackstone mentions
an English statute:

But there is one species of manslaughter which is punished
as murder, the benefit of clergy being taken away from it by statute; namely,
the offence of mortally stabbing another, though done upon sudden
provocation. For by statute 1 Jac. 1, c. 8, when one thrusts or stabs another,
not then having a weapon drawn, or who hath not then first stricken the
party stabbing, so that he dies thereof within six months after, the offender
shall not have the benefit of clergy, though he did it not of malice aforethought.4
Blackstone, supra note 8, at *193.

34. 33 Use of a deadly
weapon is sufficient evidence of malice or intent to kill.
Phillips,
¶ 11, 794 So. 2d at 103 ("We have held that `malice, or deliberate
design, may be inferred from use of a deadly weapon.'") (quoting Carter
v. State, 97-KA-00760-SCT, ¶ 21, 722 So. 2d 1258, 1263 (Miss. 1998)).
Mississippi trial courts before the mid-twentieth century repeatedly gave
an instruction that "malice is implied by law from the nature and character
of the weapon used, and the deliberate use of a deadly weapon . . . is
in law, evidence of malice." Criss v. State, 30 So. 2d 613, 614 (Miss.
1947) (quoting instruction, observing that "we do not approve it," but
finding that it was not reversible error). The court's failure to reverse
would be questionable today under Franklin.

In Smith v. State, the defendant fired a pistol
into a crowded room, killing a fifteen-year-old girl. 38 So. 2d 725, 725
(Miss. 1949). A jury convicted him of murder under a "deliberate design"
instruction, and the court affirmed with the

observation: We are of the opinion that under the usual
and customary indictment . . . wherein the crime of murder is charged,
there is sufficient evidence in this record to warrant the jury in convicting
the defendant of murder without regard to whether clause (a) ["deliberate
design"] or (b) ["act eminently dangerous to others"] of the statute hereinabove
quoted is the applicable one.Smith, 38 So. 2d at 725-26. Affirming
the conviction, the court concluded that use of the weapon established
a presumption or implication of malice that warranted submitting the case
to the jury on a theory of murder and that there was no reversible error
in the deliberate design instruction. Id. at 726.

It is true that malice is an essential element of murder,
but it was held in the case of Criss v. State, Miss., 30 So. 2d 613, that
actual malice is not a necessary ingredient of murder. As a matter of law
the element of malice is implied from the deliberate use of a deadly weapon.
Cases are cited by appellant to the effect that where all of the facts
are in evidence an instruction for the State that malice will be implied
from the deliberate use of a deadly weapon is not proper. However, the
State did not obtain such an instruction in the instant case. The Court,
however, was entitled to consider the law on the question in determining
whether or not the issue of murder should be submitted to the jury at all.Id.;
accord
Nicolaou v. State, 612 So. 2d 1080, 1083 (Miss. 1992) (holding unexplained
killing with deadly weapon sufficient evidence of murder).
See generally
Stanny Sanders, The Work of the Mississippi Supreme Court--Criminal
Law and Procedure, 21 Miss. L.J. 10, 12 (1949) ("In other words, because
of the presumption of malice attending the deliberate use of a deadly weapon,
when a homicide results from such a use of such weapon, the issue of murder
can be properly submitted to the jury, even though the state fails to produce
any evidence of malice or motive and although all the facts and circumstances
surrounding the homicide are in evidence, and the jury therefore cannot
be instructed as to the aforementioned presumption").

35. 34 Echoing Blackstone,
Chitty insisted that malice meant either ill will towards a particular
victim or "an evil design in general." 2 Joseph Chitty, A Practical Treatise
on the Criminal Law *720.

36. 35 Dressler, supra
note 10, § 31.02[B][2], at 503:

"Malice" is a legal term of art with little connection
to its non-legal meaning. As the term has developed, a person who kills
another acts with the requisite "malice" if she possesses any one of four
states of mind: (1) the intention to kill a human being; (2) the intention
to inflict grievous bodily injury on another; (3) an extremely reckless
disregard for the value of human life; or (4) the intention to commit a
felony during the commission or attempted commission of which a death results.Id.
(footnotes omitted); see LaFave, supra note 10, § 7.1(a),
at 655. "To sum up these various modern types of murder, they are: (1)
intent-to-kill murder; (2) intent-to-do-serious-bodily-injury murder; (3)
felony murder; (4) depraved heart murder." Id. Dressler and LaFave
also recognize a possible fifth category, killings arising out of resistance
to lawful arrests. Dressler, supra note 10, § 31.02[B][2],
at 503 n.34; LaFave, supra note 10, § 7.1(a), at 655. Students
are properly warned "not to invoke the terms `malice' or `malice aforethought'
for any of their common-sense connotations; rather, `malice' is a `code
word' encompassing the states of mind outlined above." John Kaplan et al.,
Criminal Law: Cases & Materials 347 (4th ed. 2000). "Malice aforethought"
is a legal term of art in which the words are not used in their ordinary
sense. . . . Positively, it requires that the defendant at the time of
the homicide have one of the following states of mind: (1) An intent to
kill . . . . (2) An intent to commit "serious" or "grievous" bodily injury
. . . . (3) A wanton and reckless disregard of a very great risk of causing
death or serious bodily injury . . . . (4) Malice is also implied when
the defendant or his accomplice commits a killing in the perpetration of
certain felonies.Phillip E. Johnson, Criminal Law: Cases, Materials &
Text 163 (6th ed. 2000). See generally Arnold H. Loewy, Criminal
Law in a Nutshell 26 (3d ed. 2000) (listing four kinds of killings as those
that "courts have characterized as heinous enough for murder (and therefore
with `malice aforethought')") (emphasis added).

Stephen presented the history of malice as culminating
in these black letter formulae that he enumerated in his treatise. 3 Stephen,
supra
note 11, at 80.

42. 41 France defines meurtre
(murder) as the "willful killing of another," Code Pénal [C. pén.]
art. 221-1, in The French Penal Code of 1994 as amended as of January
1, 1999, at 94 (Edward A. Tomlinson trans., Fred B. Rothman & Co. 1999)
[hereinafter French Penal Code], and adds that "[m]urder committed with
premeditation is an assassination . . . punishable by felony imprisonment
for life."
Id. art. 221-3, in French Penal Code, supra,
at 94. In contrast, causing death "by carelessness, imprudence, inattention,
negligence, or the non-observance of an obligation of safety or prudence
imposed by law or regulation" is "unintentional homicide." Id. art.
221-6[1], in French Penal Code, supra, at 96. "The key feature
of the intention is that it is an intention to take life. It is not necessary
that the victim be the person the murderer wanted to kill." John Bell et
al., Principles of French Law 242 (1998). Under French law, meurtre
liability can also be aggravated when it is committed during a serious
crime and by the status of the victim; it is then punished comparable to
assassination. Compare C. pén. arts. 221-2[1]-[2], 221-3[2],
in
French Penal Code, supra, at 94-95, with C. pén. art.
221-4[1]-[2], at 95 (allowing court to raise penalty in certain circumstances).
Situation factors and the status of the victim cannot elevate unintentional
homicide to meurtre. Id. art. 221-6, in French Penal
Code, supra, at 96.

Dutch law provides that "[a] person who intentionally
takes the life of another is guilty of manslaughter," and "[a] person who
intentionally and with premeditation takes the life of another person is
guilty of murder." Wetboek van Strafrecht [WvS] arts. 287, 289, in
The Dutch Penal Code 199 (Louise Rayar & Stafford Wadsworth trans.,
Fred B. Rothman & Co. 1997). Manslaughter liability is aggravated and
punished comparable to murder when committed during the commission of criminal
offenses. Id. art. 288, in The Dutch Penal Code, supra,
at 199. In contrast, "[a] person who by negligence or carelessness is responsible
for the death of another [is guilty only of death ensuing as a result of
negligence or carelessness and] is liable to a term of imprisonment or
of detention of not more than nine months." Id. art. 307, in
The Dutch Penal Code, supra, at 204.

German penal law similarly provides that homicide (Totschlag)
requires intent to kill. For translations, see The Penal Code of the Federal
Republic of Germany 176 (Joseph J. Darby trans., Fred B. Rothman &
Co. 1987), and The German Penal Code of 1871, at 113 (Gerhard O.W. Mueller
& Thomas Buergenthal trans., Fred B. Rothman & Co. 1961) (containing
German Penal Code as amended through 1953). Homicide is aggravated to Mord
(murder) when committed "from a lust to kill (Mordlust), to satisfy
[the killer's] sex drive, from covetousness or other base motives; treacherously
or cruelly or by means endangering the community or for the purpose of
making possible or concealing the commission of another crime." Strafgesetzbuch
[StGB] § 211, in The Penal Code of the Federal Republic of
Germany, supra, at 176.

By excluding extreme recklessness and intent to inflict
serious injury from its most serious class of homicide crimes, Continental
jurisprudence appears to depart radically from the common law. However,
French courts have characterized facts as establishing an intent to kill
that common law courts would probably find demonstrated either an intent
to injure or extreme recklessness. Bell, supra, at 243 (summarizing
French case resulting in meurtre liability where "the act of releasing
a driverless and unlit lorry in the direction of a group of police officers
with a stone jammed onto the accelerator is sufficient indication of an
intention when it is clear the actor knew that the lorry would necessarily
kill anyone in its path"). German law reaches a similar result:

Both Soviet and German law take an indirect intention
(dolus
eventualis) to be sufficient to constitute intentional killing. The
technical definition of indirect intention is that if the actor engages
in life-endangering behavior, his killing is intentional if he "reconciles
himself" or "makes peace" with the likelihood of death. Thus, if the killing
is committed with "manifest indifference to the value of human life," even
conduct of minimal risk can qualify as intentional homicide. Thus if the
suspect fires at a moving car with people in it and a passenger is hit
by the bullet, his killing is likely

to be treated as intentional.George P. Fletcher, Rethinking
Criminal Law 325-26 (1978).

43. 42 Act of May 26, 1790,
ch. 14, § 1, 1 Stat. 123, 123 (1790), reprinted in Frederick
E. Hosen, Unfolding Westward in Treaty & Land: Land Documents in United
States History From the Appalachians to the Pacific, 1783-1934, at 45 (1988).
The Act made the territory south of the Ohio River one "district." Id.

45. 44 John R. Skates,
Mississippi: A Bicentennial History 57 (1979). Governor Winthrop Sargent,
a federalist and former Secretary of the Northwest Territory, proved unpopular
with the inhabitants of the Mississippi Territory. Id. at 56. Critics
protested that his government made new laws rather than simply adopting
statutes in force in one of the original states. See generallyid.
at 57; Michael H. Hoffheimer, Mississippi Courts: 1790-1868, 65
Miss. L.J. 99, 103-04 n.14 (1995).

46. 45 A Law Respecting
Crimes and Punishments (Feb. 28, 1799), reprinted in Sargent's Code:
A Collection of the Original Laws of the Mississippi Territory Enacted
1799-1800: By Governor Winthrop Sargent and the Territorial Judges 11-18
(1939) [hereinafter Sargent's Code]. Crimes were among the statutes adopted
by Governor Sargent and Justices P. Bryan Bruin and Daniel Tillton on the
first day they legislated for the Mississippi Territory. P.L. Rainwater,
Introduction
to
Sargent's Code, supra, at ii. The crimes were clearly derived

from some restatement of common law doctrines but do not
closely follow the formulas of Blackstone. Id. The provisional government
subsequently enacted criminal provisions to regulate slaves. A Law Providing
for the Speedy Trial of Slaves (Oct. 30, 1800), reprinted in Sargent's
Code, supra, at 167-68; A Law for the Regulation of Slaves (Mar.
30, 1799), reprinted in Sargent's Code, supra, at 44-48.
Most crimes were punished by imprisonment, whipping, or fine, and legislation
attempted to provide the necessary means. See A Law Directing the
Building and Establishing of a Court House, Gaol, Pillory, Whipping Post
and Stocks in Every County (Apr. 12, 1799), reprinted in Sargent's
Code, supra, at 88-90. For a critical account of Governor Sargent's
conviction that more jails were needed in the Territory, see the redeemer
historical account by Robert Lowry & William H. McCardle, A History
of Mississippi from the Discovery of the Great River to the Death of Jefferson
Davis 169 (Jackson, Miss., R.H. Henry & Co. 1891).

Governor Sargent was convinced of the need for imposing
legal order in the Territory even before he arrived, characterizing inhabitants
of the Territory as men of "refractory and turbulent spirit." Rainwater,
supra,
at ii (quoting letter from Governor Sargent to Secretary of State Pickering).
Even before the arrival of the second judge made it possible to adopt legislation,
the governor took emergency steps, citing "imperious Necessity," Letter
from Governor Sargent to Secretary of State Timothy Pickering (Sept. 29,
1798), in 1 Mississippi Territorial Archives 1798-1803: Executive
Journals of Governor Winthrop Sargent & Governor William Charles Cole
Claiborne 53 (Dunbar Rowland ed., 1905), to appoint conservators of the
peace. The governor obviously assumed the Territory was subject to certain
criminal laws prior to legislation, for he authorized the conservators
to suppress riots and affrays, hold the publishers of treasonable and seditious
language to account, and to arrest criminals and hold felons pending the
establishment of territorial supreme court. See generally Rainwater,
supra,
at ii; Hoffheimer,
supra note 44, at 107.

While the prosecution of common law crimes might have
been within Congress's grant of common law jurisdiction to the territorial
courts, the provisional territorial government of the governor and judges
was limited by the act of Congress to "adopt[ing] and publish[ing]" positive
laws of the original states. Rainwater, supra, at ii. The governor's
critics protested that parts of Sargent's Code, not copied from
existing state legislation, exceeded the governor's authority.
Id.
And they objected that the punishment of arson by forfeiture of property
in the Territory violated the federal Constitution. Id. at iii;
cf.
U.S. Const. art. III, § 3 ("[N]o Attainder of Treason shall work Corruption
of Blood, or Forfeiture except during the Life of the Person attainted.").

Problems were aggravated by the lack of access to statutes
of states and by the lack of legal training of the governor and judges.
See
generally Hoffheimer,
supra note 44, at 103 n.14 (citing sources).

48. 47Id. at 12.
The code defined the structures more broadly than the common law but defined
the specific intent requirement more narrowly:

If any person or persons, shall in the night season, break,
open and enter, any dwelling house, store or vessel, in which any person
or persons dwell or reside, within [sic] a view and intention, of
stealing and purloining therefrom, he, she or they, so offending; shall
be deemed guilty of burglary . . . .Id. The punishments, whipping,
fine, and imprisonment were increased if the criminals completed the theft
and if they "shall commit, or attempt to commit, any personal abuse, force
or violence, or shall be so armed with any dangerous weapon or weapons
as clearly to indicate a violent intention." Id. This last provision
was followed immediately by the murder rule, which, in this context, thus
makes clear that the drafters envisaged that the killers subject to the
rule were killing while intentionally inflicting violence or employing
dangerous weapons in the course of burglary.

And if the death of any innocent person should ensue,
from the breaking, and entering any dwelling house, shop, store or vessel,
as aforesaid: and in any of the instances aforesaid; the person or persons,
so breaking and entering, shall be deemed guilty of wilful murder: and
all persons aiding and assisting, in breaking and entering any dwelling
house, shop, store or vessel as aforesaid, or in any of the crimes consequent
thereupon, as before pointed out, shall be deemed principals.Id.
at 13.

49. 48Id. Unarmed
robbery was punished like simple burglary. Id. But when accompanied
by a more violent assault, the punishment was increased, and when the assault
resulted in death, it was classified as murder:

Whoever shall commit such robbery, with personal abuse
or violence, or be armed at the time, with any dangerous weapon or weapons,
so as clearly to indicate an intention of violence, he, she or they, so
offending, upon conviction thereof, shall moreover suffer as in the second
instance of Burglary: and in case any person or persons, robbing or attempting
to rob, as aforesaid, shall kill or slay, any person or persons, defending
him, her or themselves, or others: or his, her or their property, against
such robber or robbers, or person or persons attempting to rob, or in pursuing
and endeavoring to apprehend, and secure such person or persons, so robbing
or attempting to rob, he, she or they so offending, shall be

deemed guilty of wilful murder; and all aiders and abettors,
in any robbery, as aforesaid, and in any of the crimes consequent thereupon,
as before pointed out, shall be deemed principals.Id.

50. 49Id. at 12.
The code did, however, specify at least some circumstances that absolved
the killer of all criminal liability:

[I]f any person in the just, and necessary defense of
his own life, or the life of any other person, shall kill or slay, another
person, attempting to rob or murder, in the field, or highway, or to break
into a dwelling house, if he cannot with safety to himself, otherwise take
the felon, or assailant, or bring him to justice, he shall be holden guiltless.Id.
at 11-12.

51. 50 Act of Feb. 10,
1807, § I, reprinted in Statutes of the Mississippi Territory
212 (1816) ("If any person or persons shall commit the crime of wilful
murder, such person or persons, on being thereof convicted, shall suffer
death."). The common law recognized the crime of petit treason, essentially
murder of a husband by a wife (not vice versa), of a master by a servant,
or an ecclesiastical superior by an inferior, see 4 Blackstone,
supra
note 8, at *203-*04, and made it indictable and punishable "as is directed
in other kinds of wilful murder." Act of Feb. 10, 1807, § II, reprinted
in Statutes of the Mississippi Territory, supra, at 212. The
Act imposed the death penalty on accessories before the fact to wilful
murder, rape, arson, robbery, and burglary. Id. § XII, at 213.

It incorporated all other common law offenses. Id.
§ XLV, at 221 ("Every other felony, misdemeanor, or offence whatsoever,
not provided for by this or some other act of the general assembly, shall
be punished as heretofore, by the common law.").

52. 51 Act of Feb. 10,
1807, § XXXIX, at 219.

53. 52 Act of December
24, 1814, § I, reprinted in Statutes of the Mississippi

Territory, supra note 50, at 244: "Hereafter, any
person who shall commit the crime of manslaughter, and be thereof convicted,
such person shall be fined in a sum not exceeding five hundred dollars,
and be imprisoned not exceeding twelve months [at the jury's discretion.]"
Id.

54. 53 The act consolidated
previous sections punishing principals and accessories before the fact
and removed "wilful" from the characterization of murder. Act of Feb. 12,
1820, ch. 56, § 2, 1820 Miss. Laws 3d Sess. 67, 67. "That very person
who shall commit murder, or shall aid, abet, counsel, hire, command, cause
or procure an person or persons to commit murder, shall, on being thereof
convicted, suffer death." Id. It continued to provide that petit
treason be indicted and punished like murder. Id. § 3, at 67-68.
In addition, it copied verbatim the provision from 1807 territorial legislation
providing that the survivor of a duel be guilty of "wilful murder." Id.
§ 38, at 78.

55. 54Id. §
4, at 68. "That if any person or persons commit the crime of man-slaughter,
and be thereof convicted, such person or persons shall be fined in such
sum, as shall be assessed by the court, and branded on the hand with the
letter M, in open court." Id. Both the change of discretionary authority
to impose a fine for manslaughter from the jury to the court and the mandatory
requirement of branding may evidence the legislature's dissatisfaction
with the results of jury decisionmaking. The reasons for the removal of
any authority to imprison is problematic and may have been a mistake. See
infra text accompanying note 61.

It is questionable whether this statute responded to a
practical gap in the murder laws. It seems designed rather to alleviate
a concern that might have been provoked by Blackstone's discussion of implied
malice. Blackstone viewed killing by poison as "the most detestable," 4
Blackstone, supra note 8, at *196; nevertheless, he believed that
willful poisoning did not necessarily show express

malice. Id. at *200. This, according to the theory
set forth above, seesupra text accompanying notes 17-18,
was because conclusive evidence of poisoning with intent to kill might
exist without further evidence of longstanding or notorious hostility.
4 Blackstone, supra note 8, at *200. But Blackstone insisted this
was an easy case where the law presumed malice. Id. The addition
of this statute may have resulted from a legislator misunderstanding Blackstone
and concluding that the problem of classifying deliberate poisoning killings
as evidencing express malice suggested a difficulty in classifying
them as murder.

57. 56 See Blackstone's
discussion of this statute, supra note 32. Under English law these
killings were not in fact classified as murder (as there was not necessarily
malice aforethought), but by withdrawing benefit of clergy, they were punished
the same as murder.

58. 57 The Mississippi
statute incorporated the elements and some of the language of the English
model. Rev. Code Miss. ch. 56, § 2 (1824) (stabbing any person "that
hath not then any weapon drawn" nor struck the first blow who died within
six months "although it cannot be proved that the same was done of malice
aforethought . . . shall be . . . wilful murder"). This statute, dated
June 11, 1822, expressly incorporated defenses of self-defense and misfortune
that were made general defenses to homicide in the more comprehensive code,
dated June 14, 1822.
See id. ch. 54, § 29.

This statute and the one addressing homicide by perjury,
infra
note 67, betray the influence of Blackstone. Friedman remarked of contemporary
courtroom practice: "The poverty of source materials left a vacuum, filled
in by Blackstone, local statutes, and native wit. Few lawyers could know
how to distinguish the fossils in Blackstone from the living law back East.
For this reason, court law was, simultaneously, freewheeling and curiously
archaic." Lawrence M. Friedman, A History of American Law 145 (2d ed. 1985).
Mississippi positive laws from this period suggest that Friedman's remarks
apply also to the legislative use of Blackstone.

59. 58 Rev. Code Miss.
ch. 55, § 1 (1824).

60. 59See State
v. Jones, 1 Miss. (1 Walker) 83, 85 (1820) ("The taking away the life of
a reasonable creature, under the king's peace, with malice aforethought,
express or implied is murder at common law.").

If any person or persons shall commit the crime of manslaughter,
and be thereof convicted, such person or persons shall be fined in such
sum, and imprisoned, for such length of time, as shall be adjudged by the
court, and branded in the hand with the letter M, in open court.Id.

63. 62Id. §
68. "[I]f any person or persons shall be convicted a second time of the
crime of manslaughter, the person or persons so offending, shall suffer
death." Id. At common law, benefit of clergy was available only
for the first conviction of manslaughter. Accordingly, manslaughter might
have been a capital crime under the vague provisions of Sargent's Code,
but subsequent legislation had provided more specific forms of punishment
that did not incorporate the common law.

64. 63See 4 Blackstone,
supra
note 8, at *196 ("There was also, by the ancient common law, one species
of killing held to be murder, which may be dubious at this day; as there
hath not been an instance wherein it has been held to be murder for may
ages past: I mean by bearing false witness against another, with an express
premeditated design to take away his life, so as the innocent person be
condemned and executed."). Blackstone suggested that such cases met the
elements of murder but were not prosecuted in order not to deter witnesses
in capital cases.
Id. at *196 n.g, *197.

65. 64 Rev. Code Miss.
ch. 54, § 59 (1824). "If any person bear false witness wilfully, and
of purpose to take away anyone's life, and the life of any person be taken
away in consequence of such false witness; the person so offending, on
conviction thereof . . . shall suffer death." Id.

There was no statutory privilege of a husband to employ
force against his wife, and the Mississippi Supreme Court early held that
a husband was not immune to a criminal prosecution for assault and battery
against his wife. Bradley v. State, 1 Miss. (1 Walker) 156, 157-58 (1824).
The court nevertheless insisted in dictum that a husband had a privilege
"within reasonable bounds . . . to inflict pain and suffering" on his wife.
Bradley,
1 Miss. at 158. The court specifically referred to the doctrine that a
husband might "use a whip or rattan, no bigger

than my thumb, in order to inforce [sic] the salutary
restraints of domestic discipline." Id. at 157. The historical authenticity
of this common law privilege of wife beating was denied by conservative
anti-feminists because some feminists incorrectly associated this privilege
with the etymology of the phrase "rule of thumb." An internet search, performed
from http://www.google.com, of "rule of thumb feminism" will reveal numerous
references.

68. 67 Act of Feb. 15,
1839, ch. 66, 1839 Miss. Laws 102. The formal title of this session law
was, "An Act to Amend the Acts of This State Concerning Crimes and Punishments,
and the Penitentiary." As codified, this act was given the title Penitentiary
Code. See Stat. Miss. ch. 50 (V.E. Howard & A. Hutchinson 1840)
[hereinafter Penitentiary Code].

69. 68 Penitentiary Code,
supra
note 67, pmbl. ("Whereas, it is expedient that the several statutes of
this state relating to crimes and punishments, proceedings in criminal
cases, and prison discipline, should be consolidated and arranged in appropriate
acts, titles and articles, that the language thereof should be simplified,
and that omissions and other defects should be supplied . . . .").

70. 69 Most of the language
for the homicide statutes was copied verbatim from

Petit treason, as before, was explicitly abolished (though
not by name as it was in the caption provided by New York reviser). See
id. tit. 1, § 7 ("The killing of a master by his servant, or of
a husband by his wife, shall not be deemed any other or higher offence
than if committed by any other person."). The text of the statute is copied
from 2 Rev. Stat. N.Y. pt. 4, ch. 1, tit. 1, § 8 (1829).

72. 71 New York and Mississippi
were hardly the first to eliminate "malice" from definitions of homicide,
and the language of "premeditation" and "deliberation" were influenced
by the definition of murder in colonial Pennsylvania. William Penn, probably
influenced by George Fox's writings against capital punishment, defined
murder as homicide done "wilfully or premeditately [sic]." Edwin R. Keedy,
History
of the Pennsylvania Statute Creating Degrees of Murder, 97 U. Pa. L.
Rev. 759, 760-61 (1949) (tracing history of murder statute since colonial
times). In 1793, the state of Pennsylvania adopted the definition of first
degree murder as "all murder, which shall be perpetrated by means of poison,
or by lying in wait, or by any other kind of wilful, deliberate and premeditated
killing." Id. at 773 (quoting 4 Journal of the Senate 80 (Pa. 1794)).

The Pennsylvania model was very influential, and New York
amended its murder statute later in the century to distinguish first degree
and second degree murder. First degree murder then included intentional
killings only when done from a "deliberate and premeditated design to effect
the death of the person killed, or of any human being." 3 Rev. Stat. N.Y.
pt. 4, ch. 1, tit. 1, § 5 (1875). Second degree murder encompassed
killings committed "intentionally but without deliberation and premeditation."
Id.
Because the legislature focused exclusively on premeditation and deliberation
in differentiating degrees of murder, unintentional

homicides were still ranked as first degree murder. The
higher culpability attached to such killings by legislation probably helps
explain the emergence of authority in the nineteenth century that required
a depraved heart killer to create a risk of death to more than one person.
This authority influenced Mississippi decisions for some time. Seeinfra
note 281.

(1) The killing of a human being without the authority
of law by any means or in any manner shall be murder in the following cases:

(a) When done with deliberate design to effect the death
of the person killed, or of any being;

(b) When done in the commission of an act eminently dangerous
to others and evincing a depraved heart, regardless of human life, although
without any premeditated design to effect the death of any particular individual;

(c) When done without any design to effect death by any
person engaged in the commission of any felony [other than the felonies
listed for capital murder]. Id. The original statute followed the
New York statute verbatim except that it substituted "eminently" for "imminently."
See
2 Rev. Stat. N.Y. pt. 4, ch. 1, tit. 1, § 5(2) (1829).

77. 76 There is obviously
much duplication in the list of circumstances establishing a defense of
justification. The code separately listed situations applicable to public
officers and their agents and then listed those that applied to all persons.
"Such homicide is also justifiable when committed by any person in either
of the following cases: 1. When resisting any attempt to murder such person,
or to commit any felony upon him or her, or upon or in any dwelling-house
in which such person shall be . . . ." Penitentiary Code, supra
note 67, tit. 3, § 3 (copying 2 Rev. Stat. N.Y. pt. 4, ch. 1, tit.
2, art. 1, § 3(1) (1829). The current laws retain this with slight
rephrasing. Miss. Code Ann. § 97-3-15(1)(e).

78. 77 Homicide is justifiable:

[w]hen committed in the lawful defence of such person,
or of his or her husband, wife, parent, child, master, mistress, or servant,
when there shall be a reasonable ground to apprehend design to commit a
felony, or to do some great person injury, and there shall be imminent
danger of such design being accomplished . . . . Penitentiary Code, supra
note 67, tit. 3, § 3(2) (copying 2 Rev. Stat. N.Y. pt. 4,

The special references to correcting children and servants
was removed in 1985. See Act of March 21, 1985, ch. 380, §
1, 1985 Miss. Laws 138, 138. The general defense is preserved. See Miss.
Code Ann. § 97-3-17 ("The killing of any human being by the act, procurement,
or omission of another shall be excusable: (a) When committed by accident
and misfortune in doing any lawful act by lawful means, with usual and
ordinary caution, and without any unlawful intent . . . .").

Common law authorities were fascinated by cases where
physical pain and injuries, permitted for the purpose of disciplining servants
and children, resulted in unintended death. "If the master designeth moderate
correction to his servant, and accordingly useth it, and the servant by
some misfortune dieth thereof, this is not murder, but per infortunium,
because the law alloweth him to use moderate correction, and therefore
the deliberate purpose thereof is no ex malitâ praecogitatâ."
1 Hale, supra note 12, at 454. Hale maintained that immoderate or
unreasonable correction might be murder "if done with deliberation and
design" or manslaughter "if done hastily, passionately, and without deliberation."
Id.
For Blackstone, however, express malice was demonstrated by the very fact
of "excessive correction." See 4 Blackstone, supra note 8,
at *199 (citing cases of murder where the victim was dragged by a horse,
struck with an iron bar, and stamped in the belly).

It is not clear to me whether the authorities were concerned
with a practical problem of allocating spheres of permissible injury or
whether the issue attracted their attention because it threatened to challenge
the absolute character of the presumption of malice from an intent to inflict
serious injury. It is obvious, however, that slaveholders and their agents
who depended on the frequent administration of severe injuries would want
a liberal defense for homicide resulting from correcting a servant.

The current laws retain this defense, but the recodification
of this defense over the years resulted in a separate enumeration of provoked
and sudden combat killings. Cf. Miss. Code Ann. § 97-3-17 (making
homicide excusable "(b) When committed by accident and misfortune, in the
heat of passion, upon any sudden and sufficient provocation; (c) When committed
upon any sudden combat, without undue advantage being taken, and without
any dangerous weapon being used, and not done in a cruel or unusual manner").
Under this formulation, the special qualifications of no undue advantage,
no dangerous weapon, and no cruel and unusual manner were restricted to
sudden-combat killings. In the original, however, these appear to be more
general restrictions for all such excusable homicides, and their absence
would presumably have resulted in the homicide being treated as manslaughter
(as it would have been at common law).

84. 83Id. §
12 (copying 2 Rev. Stat. N.Y. pt. 4, ch. 1, tit. 2, art. 1, § 17 (1829)).
The two statutes were subsequently consolidated and are retained as Miss.
Code Ann. § 97-3-35 ("The killing of a human being, without malice,
in the heat of passion, but in a cruel or unusual manner, or by the use
of a dangerous weapon, without authority of law, and not in necessary self-defense,
shall be manslaughter.").

85. 84 This may have been
the legislature's objective when it substituted "without malice" for "without
design." Seesupra note 72 and accompanying text.

86. 85 Though this is the
most obvious conclusion from the wording and structure of the statute,
the supreme court insisted on construing the old terminology "premeditated
design" as meaning no more than malice at common law. See McDaniel
v. State, 16 Miss. (8 S. & M.) 401 (1847).

87. 86 Penitentiary Code,
supra
note 67, tit. 3, § 20 (copying 2 Rev. Stat. N.Y. pt. 4, ch. 1, tit.
2, art. 1, § 20 (1829)); see 2 Chitty, supra note 34,
at *731 (maintaining that killing where "no undue advantage" was taken
was manslaughter); 1 William Oldnall Russell, A Treatise on Crimes &
Indictable Misdemeanors *495 (observing that it was murder where undue
advantage was taken during mutual combat). The New York statute modified
the law by reducing the former case to excusable homicide and the latter
to manslaughter.

elements of murder under New York statute reduced certain
crimes that would have been murder at common law to manslaughter).

90. 89 Killings without
design by misdemeanants would not have been murder at common law. On the
other hand, the killing of such a misdemeanant might have been murder at
common law when committed without premeditation yet with malice because
there was no privilege to employ deadly force to apprehend or stop a misdemeanant.
The statute's requirement that the killing be "without design" is troubling.
It may have meant that no general intent needed to be proved, but it is
more likely that it meant that a killing with design (or "premeditated
design") would qualify as murder.

91. 90Seeinfra
note 92.

92. 91 Penitentiary Code,
supra
note 67, tit. 3, § 13 ("The involuntary killing of a human being,
by the act, procurement, or culpable negligence, of another, while such
other person is engaged in the commission of a trespass or other injury
to private rights or property, or engaged in an attempt to commit such
injury, shall be deemed manslaughter in the third degree.") (copying 2
Rev. Stat. N.Y. pt. 4, ch. 1, tit. 2, art. 1, § 18 (1829)). This is
retained in current laws with a change that makes explicit that the victim,
not the killer, is the trespasser. Miss. Code Ann. § 97-3-33 ("The
involuntary killing of a human being . . . while such human being is engaged
in the commission of a trespass or other injury to private rights or property,
or is engaged in an attempt to commit such injury, shall be manslaughter.").

93. 92 Miss. Code Ann.
§ 97-3-29 ("The killing of a human being without malice, by the act,
procurement, or culpable negligence of another, while such other is engaged
in the perpetration of any crime or misdemeanor not amounting to felony,
or in the attempt to commit any crime or misdemeanor, where such killing
would be murder at common law, shall be manslaughter."). Captions in early
codes declared the statute applied to misdemeanant-victims, cf.
Miss. Code ch. 20, § 991 (1930) ("[H]omicide--killing while the slain
was committing a misdemeanor"), but a supreme court decision, State
v. Proctor, 59 So. 890 (1912), was eventually read as providing some
authority for construing it as embodying the doctrine of misdemeanor manslaughter.
In that case, the supreme court affirmed a trial court's refusal to give
felony murder instructions where a mother died from an illegal abortion
but maintained that "[t]he crime which defendant intended . . . would be
manslaughter [citing the section pertaining to killing of quick child]."
Proctor,
59 So. at 891. The court then inexplicably concluded that "[s]ection 1233
[killing while such other engaged in misdemeanor] was intended to meet
such cases." Id. Since killing an unborn, quick child was a felony
and not a misdemeanor, the court's decision may have meant to cite former
section 1232 (precursor of today's statute, Miss. Code Ann. § 97-3-27
(2000)), understood as imposing liability for felony manslaughter.

The court subsequently held squarely that an unintentional
death caused during the commission of three misdemeanors was not murder.
See
Dixon v. State, 61 So. 423, 424 (1913) (holding that unlawful discharge
of gun resulting in death was not misdemeanor manslaughter where misdemeanors
were mala prohibita not
mala in se and where death was not
the natural and probable result of the misdemeanors).

The (inept) annotation of Dixon and the generous
construction of the dictum in Proctor apparently led the editors
to re-designate the statute. See Miss. Code Ann. § 11-1-2221
(1942) ("[H]omicide--killing while the slayer was committing misdemeanor").

Today's code continues to designate this statute as a
misdemeanor manslaughter provision. Cf. Miss. Code Ann. § 97-3-19
(2000) ("Homicide; killing while committing a misdemeanor"). Headings in
the code are not law. See Mayfield v. State, 612 So. 2d 1120, 1131
(Miss. 1992) (Banks, J., concurring in part and dissenting in part) (cautioning
that title of statute is work of codifiers, not legislature, and should
not be controlling in construction). The redesignation of this statute
as a misdemeanor manslaughter statute has apparently never been challenged
and has been embraced by prosecutors and courts. Cf. Jones v. State,
678 So. 2d 707, 710 (Miss. 1996) (en banc) (reversing on evidentiary grounds
but holding that child's death from ingestion of cocaine supported finding
of culpable negligence in prosecution for manslaughter while engaged in
criminal abuse or neglect).

97. 96 "Every person who
shall unnecessarily kill another, either[:] 1. While resisting an attempt
by such other person to commit any felony, or to do any other unlawful
act: or, 2. After such attempt shall have failed, [--]shall be deemed guilty
of manslaughter in the second degree." Penitentiary Code, supra
note 67, tit. 3, § 11 (1840) (copying 2 Rev. Stat. N.Y. pt. 4, ch.
1, tit. 2, art. 1, § 16 (1829)). This is retained in current laws.
See
Miss. Code Ann. § 97-3-31 ("Every person who shall unnecessarily kill
another, either while resisting an attempt by such other person to commit
any felony, or to do any unlawful act, or after such attempt shall have
failed, shall be guilty of manslaughter."). See generally Wells
v. State, 305 So. 2d 333, 336 (Miss. 1974) (discussing evolution of court's
construction of this statute).

LaFave observes that other common law jurisdictions reached
a similar result as a result of case law. LaFave, supra note 10,
§ 7.11(b), at 719 n.11 (citing cases).

assisting another in the commission of self-murder, shall
be deemed guilty of manslaughter in the first degree.") (copying 2 Rev.
Stat. N.Y. pt. 4, ch. 1, tit. 2, art. 1, § 7 (1829)). Assisting suicide
today is a separate felony from manslaughter and consists of assisting
another to take his or her life, taking another's life, or attempting to
take another's life. Miss. Code Ann. § 97-3-49. Prohibited conduct
includes advising, encouraging, abetting, or assisting. Id.

99. 98 Quickening denotes
the point during gestation at which motion is detected, usually about halfway
through pregnancy. See Black's Law Dictionary 1261 (7th ed. 1999).
Fetuses before quickening were not protected; indeed the state would execute
a pregnant woman unless a jury of physicians determined that quickening
had occurred. See Penitentiary Code, supra note 67, tit.
2, §§ 19-21 (discussing execution of pregnant females) (copying
2 Rev. Stat. N.Y. pt. 4, ch. 1, tit. 2, art. 1, §§ 20-22 (1829)).
But two separate statutes punished the killing of unborn quick children.
The first punished as first degree manslaughter the wilful killing of an
unborn quick child by injury to the mother that would have been murder
if it had resulted in the death of the mother. Id. tit. 3, §
8 (copying 2 Rev. Stat. N.Y. pt. 4, ch. 1, tit. 2, art. 1, § 8 (1829)).
This is preserved verbatim in Miss. Code Ann. § 97-3-37(1). The second
punished as second degree manslaughter abortions of unborn quick children
unless necessary to save the life of the mother or unless advised by two
physicians as necessary to save the life of the mother. Penitentiary Code,
supra
note 67, tit. 3, § 9 (copying 2 Rev. Stat. N.Y. pt. 4, ch. 1, tit.
2, art. 1, § 9 (1829)). This second statute is unconstitutional as
applied to voluntary, lawful abortions prior to viability. Roe v. Wade,
410 U.S. 113, 147-66 (1973) (holding unconstitutional statutes prohibiting
abortion prior to viability). It has been repealed and replaced by legislation.
Seeinfra
text accompanying notes 175-81 (discussing its repeal); Miss. Code Ann.
§ 97-3-37(1).

105. 104 Act of March
1, 1854, ch. 50, § 1, 1854 Miss. Laws 154, 154 (providing for New
Code of Laws for State of Mississippi); see Rev. Code Miss. Introduction
(1857) (summarizing historical background of this legislation). The commissioners
were William L. Sharkey, William L. Harris, and Henry T. Ellett. §
1, 1854 Miss. Laws at 154. The commission presented a report and recommendations
to the legislature in January 1856. Id. Business was continued in
a special session that lasted sixty days and "resulted in the adoption
of the laws contained in the present volume." Id.

Although the code referred to numerous printed drafts
of components of the code, the University of Mississippi Law Library holdings
do not include any of them and reference librarians were unable to locate
any at the state archives.

106. 105 I have consulted
all the relevant volumes of session laws available at the University of
Mississippi Law Library, but the holdings of laws from 1848 to 1856 is
apparently not complete, so it is possible that amendments to the criminal
statutes preceded the recodification of the general laws.

111. 110Id. §
16, arts. 218-19 (stating that forcible unlawful carnal knowledge of a
woman or child under ten is punishable by life imprisonment).

112. 111Id. §
46, art. 44 (stating that burglary is punishable by up to fifteen years
imprisonment). Forgery was punished as severely as burglary, up to fifteen
years.
Id. § 31, art. 124. The omission of forgery is probably
due to the fact that the legislature assumed implicitly that the predicate
felony causing the death must be inherently dangerous.

113. 112Id. §
47, art. 222 (stating robbery is punishable by up to ten years in prison).

114. 113E.g.,
id.
§ 36, art. 186 (stating kidnapping is punishable by up to ten years
in prison).

Without explanation, this statute was retitled in 1942
as "Manslaughter--killing while the slayer was committing a felony other
than those specified." Miss. Code Ann. § 11-1-2220 (1942). Although
over one hundred cases were annotated under this section, virtually none
of them had any relevance. Only the prosecutions for the death of a woman
resulting from illegal (felonious) abortions might have involved this statute.
But those cases were actually prosecuted not under this statute but under
the general manslaughter statute for "culpable negligence." Compare
Lackey v. State, 60 So. 2d 503, 505 (Miss. 1952) (affirming manslaughter
conviction for death resulting from illegal abortion where jury was given
instruction under involuntary manslaughter statute requiring finding of
act, omission, or culpable negligence, not felony-manslaughter instruction),
with
Lee v.

State, 86 So. 856, 857-58 (Miss. 1921) (holding death
of woman resulting from illegal abortion was either murder if caused by
act eminently dangerous to and evincing depraved heart regardless of human
life or manslaughter if caused by act, procurement, or culpable negligence).
The Lackey opinion was understood at the time as authority that
depraved heart murder was not available for dangerous acts directed towards
an individual. T.E. Douglas & George Gleason, The Work for the Mississippi
Supreme Court for the 1950-51 Term, 23 Miss. L.J. 253, 258 (1952).

122. 121 The sentencing
rules adopted in 1839 provided that where a statute authorized imprisonment
for a term not less than any specified number of years, "the court authorised
to pronounce judgment upon such conviction, may, in its discretion, sentence
such offender to imprisonment during his natural life, or for any number
of years not less than such as are prescribed." Penitentiary Code, supra
note 67, tit. 3, § 12. Though this provision was apparently not included
in the code after revision, it expressed the prevailing view that the court
rather than the jury determined the sentence upon conviction. See id.
§ 20 (discussing sentencing guidelines without mentioning who imposes
sentence).

123. 122See supra
notes 71-72, 82-85 and accompanying text.

124. 123 Rev. Code Miss.
ch. 64, § 34, art. 170 (1857).

125. 124Id. arts.
174, 176.

126. 125Id. art.
170.

127. 126 This does not
explain why "without malice" was required for the related felony manslaughter
statute. See id. In that context, the lack of malice is either logically
impossible, malice being provided by definition by the commission of a
felony, or it is silly. Seesupra notes 27, 35 and accompanying
text. It is not likely that the legislature wanted generally to mitigate
liability for hot-blooded felons unless they were anticipating some elaborate
circumvention of voluntary manslaughter by means of the felony murder doctrine.

131. 130 Edward Mayes,
Ribs of the Law, Being a Series of Concise Statements of the Outlines for
Legal Study for the Service of Law Students 105 (1909). Mayes, son-in-law
of United States Supreme Court Justice L.Q.C. Lamar, had retired as dean
of the law school and as chancellor of the University when this book was
published, but its subtitle indicates that it derived from his introductory
law lectures.

135. 134 The history of
this doctrine in Mississippi recapitulated in miniature the common law
experience. First the courts understood malice as requiring deliberate
design that preceded the killing. Bangren v. State, 17 So. 2d 599, 600
(Miss. 1944). Then the courts found that malice and deliberate design could
be formed at the time of the killing, Carter, 25 So. 2d at 473,
and that no malice other than deliberate design was required. Hughes v.
State, 42 So. 2d 805, 807-08 (Miss. 1949); Criss v. State, 30 So. 2d 613,
614-15 (Miss. 1947). It followed that malice could be implied from the
use of a deadly weapon. Dickins v. State, 43 So. 2d 366, 373-74 (Miss.
1950); Smith v. State, 38 So. 2d 725, 726 (Miss. 1949).

136. 135 "The definition
of murder is unlawful homicide with malice aforethought; and the words
malice aforethought are technical. You must not, therefore construe them
or suppose that they can be construed by ordinary rules of language." Keedy,
supra
note 71, at 759 n.2 (quoting jury instruction in Regina v. Serné,
16 Cox Crim. Cas. 311, 312 (Eng. Cent. Crim. Ct. 1887)).

146. 145 Although the
Mississippi Supreme Court held that a jury must be instructed on the consequences
of its failure to agree if so requested, Walton v. State, 57 Miss. 533,
535-36 (1879), it affirmed a capital sentence where the jury returned a
verdict of guilty and added the words that it pleaded "the mercy of the
court." Penn v. State, 62 Miss. 450, 467-69 (1884).

147. 146 Act of April
17, 1906, ch. 248, 1906 Miss. Laws Spec. Sess. 281, 281 (adding "[o]r unless
the jury shall certify its disagreement as to the punishment as provided
by section 1439, in which case the court shall fix a punishment at imprisonment
for life" to section 1151 of the Code of 1906). The change was effected
by amending the final revisions to the proposed 1906 Code rather than by
revisions to the 1892 Code.

These death sentences are cruel and unusual in the same
way that being struck by lightening is cruel and unusual. For, of all the
people convicted of rapes and murders in 1967 and 1968, many just as reprehensible
as these, the petitioners are among a capriciously selected random handful
upon whom the sentence of death has in fact been imposed.Chief Justice
Burger and Justices Blackmun, Powell, and Rehnquist each filed dissenting
opinions. See id. at 375 (Burger, C.J., dissenting); id.
at 405 (Blackmun, J., dissenting); id. at 414 (Powell, J., dissenting);
id.
at 465 (Rehnquist, J., dissenting).

After Furman, state legislatures revised death
penalty schemes in an effort to restrict discretion and reduce arbitrary
results. The Supreme Court upheld Georgia's system under which a jury imposing
the death sentence was required to find the presence of statutory aggravating
circumstances, and the state court reviewed death sentences to determine
whether the judgment was the result of passion, prejudice, or other improper
motive, and whether the judgment was excessive or disproportionate as compared
to penalties in other similar cases. Gregg v. Georgia, 428 U.S. 153, 206-07
(1976); see Arave v. Creech, 507 U.S. 463, 471 (1993) (holding that
capital sentencing schemes must have clear objective standards); Lewis
v. Jeffers, 497 U.S. 764, 774 (1990) (stating that capital sentencing scheme
must suitably direct and limit discretion "so as to minimize the risk of
wholly arbitrary and capricious action") (quoting Gregg, 428 U.S.
at 189).

149. 148 Act of April
23, 1973, ch. 576, 1974 Miss. Laws 863.

150. 149 Miss. Code Ann.
§ 99-19-101(7)(a)-(d) (2000).

151. 150Id. §
99-19-101(2)(b). The jury must so find unanimously and in writing. Id.
§ 99-19-101(3)(b).

152. 151Id. §
99-19-101(3)(c).

153. 152 "The State must
`channel the sentencer's discretion by clear and objective standards that
provide specific and detailed guidance, and that make rationally reviewable
the process for imposing a sentence of death.'" Arave, 507 U.S.
at 471 (quoting Lewis, 497 U.S. at 774 (quoting Godfrey v. Georgia,
446 U.S. 420, 428 (1980))).

154. 153 Miss. Code Ann.
§ 99-19-101(5)(d). Authorizing the death penalty for killing without
design during the commission of certain felonies but not for premeditated
murder committed in an atrocious way is not in violation of proportionality
under the Eighth Amendment. Holland v. State, 93-DP-00494-SCT, ¶¶
5-11, 705 So. 2d 307, 319-20 (Miss. 1997). The court's reasoning included
the suggestion that the death penalty might be a more effective deterrent
for felony murders than for atrocious simple murders. Holland, 93-DP-00494-SCT,
¶ 10, 705 So. 2d at 320.

158. 157 The following
limiting instruction used in Mississippi is satisfied by a simple finding
of an intent to inflict physical or mental pain:

An especially heinous, atrocious or cruel capital offense
is one accompanied by such additional acts as to set the crime apart from
the norm of murders--the conscienceless or pitiless crime which is unnecessarily
torturous to the victim.

If you find from the evidence beyond a reasonable doubt
that the defendant utilized a method of killing which caused serious mutilation,
or that there was dismemberment of the body prior to death, or that the
defendant inflicted physical or mental pain before death, or that there
was mental torture or aggravation before death, or that a lingering or
torturous death was suffered by the victim then you may find this aggravating
circumstance.Crawford v. State, 94-DP-01016-SCT, ¶ 70, 716 So. 2d
1028, 1047 (Miss. 1998). In
Crawford, the court approved the instruction,
finding that evidence that the defendant stabbed the victim and allowed
her to bleed to death after commission of capital felony satisfied the
aggravating criteria. Crawford, 94-DP-01016-SCT, ¶¶ 70-74,
716 So. 2d at 1047-48. The court also suggested in dictum that a possible
erroneous instruction is not reversible error where the jury found one
other criterion present. Id. ¶ 72, 716 So. 2d at 1047. The
instruction may be satisfied when the victim lives even briefly with knowledge
that the killer is going to kill him or survives an initial wounding even
briefly before dying of it or of a second injury. Edwards v. State, 97-DP-00566-SCT,
¶¶ 136-37, 737 So. 2d 275, 315 (Miss. 1999) (reversing on other
grounds but opining that evidence was sufficient for finding offense was
especially heinous, atrocious, or cruel where one victim was shot in the
head, stuffed in trunk, forced to walk and shot fatally and where another
victim, two-years old, was shot as he leaned over his father).

168. 167Id. (emphasis
added). The text in brackets was included as a single line of text in the
enrolled bill, H.R. 608, 1992 Leg., 107th Reg. Sess. (Miss. 1992) (on file
with Hon. Ed Perry, Clerk of Mississippi House of Representatives), and
was evidently dropped by mistake from the final act in 1992. See
Act of May 14, 1992, ch. 508, § 1, 1992 Miss. Laws 825, 825-26. The
text of an enrolled bill controls over inconsistent text in the session
laws or code. Miss. Code Ann. § 1-1-8 (Supp. 2001). But the section
has been reenacted without the omitted language. Cf. Act of March
25, 1996, ch. 422, § 3, 1996 Miss. Laws 259, 260-61 (adding employees
of Department of Corrections but omitting deputies and other victims omitted
by mistake in 1992). The length of the list reinforces the ritual importance
of naming certain classes of victims, and the current list is the result
of repeated amendments. See Act of April 30, 2000, ch. 516, §
134, 2000 Miss. Laws 667, 722 (substituting "conservation officer" for
"game warden"); § 3, 1996 Miss. Laws at 260-61 (adding certain department
of corrections employees); § 1, 1992 Miss. Laws at 825-26 (defining
peace officer as "any state or federal law enforcement officer"); §
6, 1974 Miss. Laws at 865-66 (specifying forms of homicide for which capital
punishment can be imposed, including killing of peace officers or fireman).

169. 168 Miss. Code Ann.
§ 97-3-19(2)(h) (2000). To be capital murder, the homicide must constitute
murder of an elected official "with knowledge that the victim was a public
official." Id.

any public or private school building or bus, public or
private school campus, grounds, recreational area, athletic field, or other
property owned, used or operated by any local school board, school, college
or university board of trustees, or directors for the administration of
any public or private educational institution or during a school related
activity; provided however, that the term "educational property" shall
not include any sixteenth section school land or lieu land on which is
not located a school building, school campus, recreational area or athletic
field.Id. § 97-37-17(1)(a).

173. 172 The statute requires
"willful killing of an unborn quick child." Miss. Code Ann. § 97-3-37(1).
Despite a prominent annotation proclaiming that "it is not necessary to
prove that the defendant knew that the mother was pregnant or that the
deceased baby was `quick,'" (first annotation under statute), the case
cited holds no such thing. See Sitton v. State, 98-KA-00459-SCT,
¶¶ 15-17, 760 So. 2d 28, 31-32 (Miss. 1999). In Sitton,
the defendant deliberately ran over and killed a woman who was seven months
pregnant. Sitton, 98-KA-00459-SCT, ¶ 7, 760 So. 2d at 29-30.
Evidence showed the woman was visibly pregnant and the fetuses well developed.
Id.
¶ 17, 760 So. 2d at 31-32. In affirming the manslaughter convictions,
Justice Diaz rejected the argument that there was insufficient evidence
that the defendant knew the woman was pregnant or that the fetuses qualified
as quick children. Id. ¶¶ 15-17, 760 So. 2d at 31-32.
In further dicta, Justice Diaz observed only that other jurisdictions had
imposed strict liability on persons who caused deaths of fetuses. Id.

174. 173 Miss. Code Ann.
§ 97-3-37(1); see supra note 101 (discussing origin of statute).
There is no merger where the mother dies, and the killer can be convicted
both for the murder of the mother and manslaughter for causing the death
of the unborn quick child. State v. Willis, 457 So. 2d 959, 960 (Miss.
1984).

Quickening refers to the first perceivable motion of the
fetus in the uterus. Willis v. State, 518 So. 2d 667, 668 (Miss. 1988).
In general, this occurs after the first trimester, about half way through
the pregnancy. Black's Law Dictionary 1261 (7th ed. 1999); seeWillis,
518 So. 2d at 667 (affirming conviction for death of unborn quick child
where fetus was almost thirty-two weeks).

178. 177 Miss. Code Ann.
§ 97-3-37(2)(a). It authorizes a fine of not more than $7500, while
the fine authorized for manslaughter is not less than $500 and has no upper
limit. Id.

179. 178Id. §
97-3-37(2)(b) (punishing great bodily harm to embryo or fetus by fine and
imprisonment for not more than twenty years); id. § 97-3-37(2)(c)
(punishing serious or aggravated physical injury to embryo or fetus by
fine and imprisonment for not more than one year); id. § 97-3-37(2)(d)
(punishing physical injury to embryo or fetus by fine and not more than
ninety days imprisonment).

181. 180 Miss. Code Ann.
§ 63-11-30(1)(a)-(e) (Supp. 2001). The original statute defined intoxicated
as being "under the influence of intoxicating liquor . . . [or] any other
substance which has impaired such person's ability to operate a motor vehicle,"
or having .10 percent or more parts alcohol in blood. § 7, 1983 Miss.
Laws at 406. That definition was revised over time to add persons under
the influence of controlled substances, to reduce to .08 and then .02 percent
the blood level of alcohol needed for persons below the legal age to purchase
alcoholic beverages under state law, and to reduce to .04 percent the blood
level needed for persons operating commercial motor vehicles. Miss. Code
Ann. § 63-11-30(1).

182. 181 Miss. Code Ann.
§ 63-11-30(5). The supreme court has made clear that negligence in
this statute requires nothing more than simple negligence and does not
require the culpable negligence required for manslaughter. Banks v. State,
525 So. 2d 399, 400 (1988).

under the influence operates motor vehicle and in negligent
manner "causes the death of another or mutilates, disfigures, permanently
disables or destroys the tongue, eye, lip, nose or any other limb, organ
or member of another"). The court held the injury requirement satisfied
by a broken pelvis where there was evidence that the injuries would have
been life-threatening without medical intervention and the victim suffered
a limp and some continuing pain at the time of trial. Holloman v. State,
656 So. 2d 1134, 1140 (Miss. 1995).

184. 183 § 13, 1983
Miss. Laws at 409.

185. 184 Mayfield v. State,
612 So. 2d 1120, 1124-26 (Miss. 1992). The court held in reasoning based
partly on erroneous reliance on the title given the statute by the code,
and questioned by the dissent, that this offense proscribes drunk driving
rather than negligent killing. Mayfield, 612 So. 2d at 1128. Accordingly,
it held that a person who killed two persons could be convicted only of
a single count. Id.

186. 185 Act of April
21, 1989, ch. 565, § 1, 1989 Miss. Laws 755, 757 (punishing aggravated
DUI with ten years imprisonment). But see Miss. Code Ann. §
63-11-30(5) (making maximum imprisonment for aggravated DUI twenty-five
years); cf. Miss. Code Ann. § 97-3-25 (2000) (making imprisonment
for manslaughter twenty years). The former penalties prescribed for driving
under the influence were held not to constitute cruel or unusual punishment.
SeeHolloman,
656 So. 2d at 1138;
Banks, 525 So. 2d at 403. That case may not
clearly control today, however, for through a combination of case law and
statutory changes, the person who negligently causes an injury (e.g., a
limp and some pain) is now subject to a mandatory punishment at levels
far exceeding those for causing death with culpable negligence, and the
level of intoxication has been reduced for minors. These changes raise
new issues of proportionality not decided by prior cases.

195. 194 Miller v. State,
97-KA-00072-COA, ¶ 14, 733 So. 2d 846, 850 (Miss. Ct. App. 1998) ("While
much of the reported case law on Section 97-3-47 deals with manslaughter
convictions based on the theory of culpable negligence, we are satisfied
that the language is sufficient to encompass the other general form of
common law involuntary manslaughter."). The court held that the statute
applied where the defendant's action in striking the victim was unprovoked
and intentional but not where "one blow with a fist would not, in the normal
circumstance, be expected to produce a death. Neither does the striking
of another with a fist, in the normal circumstance, rise to the level of
a felony." Miller, 97-KA-00072-COA, ¶ 14, 733 So. 2d at 850.

208. 207 It is true that
Justice Smith paid lip service to this language when holding that a manslaughter
instruction was properly omitted in a murder trial: "By its own terms,
the section applies only when the other provisions of Chapter 97, Title
3 do not." Hurns v. State, 616 So. 2d 313, 320 (Miss. 1993). But the court
grounded its decision on the fact that "[t]he evidence does not support
a finding that Hurns possessed only the lesser degree of culpability covered
by the culpable negligence statute." Hurns, 616 So. 2d at 321.

209. 208 In Craig v.
State, the defendant admitted to killing with simple negligence in
violation of the aggravated vehicular homicide statute (then punishable
by five years imprisonment). 520 So. 2d 487, 491 (Miss. 1988). The court
held that

defendant's negligence did not rise to the culpability
level required for manslaughter. Craig, 520 So. 2d at 492-93. The
court might have pointed out, however, that
if section 97-3-27 codifies
a doctrine of felony manslaughter, then defendant's admission on appeal
might have supported a conviction properly indicted under that statute.
See
supra note 114.

216. 215 Rev. Code Miss.
ch. 64, § 34, art. 168 (1857). This was included among other justifications
and also repeated in the elements of manslaughter. Id. arts. 174,
176.

217. 216Id. art.
169.

218. 217Id. arts.
165, 169, 174, 176.

219. 218See generally
id. § 34.

220. 219 Penitentiary
Code, supra note 67, tit. 2, § 3(2).

221. 220Seesupra
notes 32 and 56.

222. 221 Although Coke
could be read as suggesting that any death resulting from an unlawful intent
to injure was murder, see generally 3 Stephen, supra note
11, at 57, by the eighteenth century, death resulting from an unlawful
act not amounting to felony was manslaughter, and even a death that might
otherwise be counted as murder could be "alleviated" to manslaughter when
it was the involuntary consequence of an unlawful act. See 4 Blackstone,
supra
note 8, at *201. "[I]t is almost universally held, as a specific instance
of unlawful-act manslaughter, that one is guilty of involuntary manslaughter
who intentionally inflicts bodily harm upon another person, as by a moderate
blow with his fist, thereby causing an unintended and unforeseeable death
to the victim . . . ." LaFave, supra note 10, § 7.13(d), at
734. LaFave criticizes the soundness of this doctrine.
Id. at 735.
See
generally 3 Stephen, supra note 11, at 57.

223. 222 Jack Katz, Seductions
of Crime 33 (1988) (providing examples of deliberate killings where the
killers wanted to achieve transcendent goals other than or in addition
to the death of the victim).

My construction of the 1839 statute assumes that the word
"or" provides an alternative only for provocation and combat and does not
introduce a new phrase. This reading is supported, circularly, by my reasoning
about the intent of the drafters. It is also supported by a close reading
of the same grammatical form employed in the preceding section. See
Penitentiary Code, supra note 67, tit. 2, § 3(1). To illustrate,
"[B]y accident and misfortune, in lawfully correcting a child or servant,
or in doing any other lawful act by lawful means, with usual and ordinary
caution, and without any unlawful intent." Id. The prepositional
phrases following "means" apply generally and modify also the correcting
of the child or servant. See 4 Blackstone, supra note 8,
at *182.

233. 232 At common law
the accidental killing with a weapon was, of course, available as a defense
when the person discharging the weapon was engaged in lawful conduct at
the time. 4 Blackstone, supra note 8, at *182. This was certainly
covered by the general excusable homicide defense of accident and misfortune
that applied to a "lawful act by lawful means, with usual and ordinary
caution, and without any unlawful intent." Miss. Code Ann. § 97-3-17(a)
(2000).

234. 233Miller,
677 So. 2d at 732; accord Taylor v. State, 597 So. 2d 192 (Miss.
1992) (reversing murder conviction where defendant claimed gun discharged
accidentally after struggle for possession but was denied accident instruction);
Scott v. State, 446 So. 2d 580, 583 (Miss. 1984) (holding failure to give
accident instruction was reversible error where gun discharged during scuffle
and instruction on excuse limited to sudden combat). Oddly, the court in
Miller
held that the omission of the self defense and accident instruction, which
may have been more relevant to the claimed need to fight for possession
of the gun, was not reversible error because the instruction (not quoted)
was confusing. Miller, 677 So. 2d at 732.

235. 234Miller,
677 So. 2d at 730.

236. 235 The court affirmed
a manslaughter conviction in a case where the defendant claimed he accidentally
shot and killed his wife while attempting to commit suicide. Nicholson
ex
rel. Gollott v. State, 672 So. 2d 744, 755 (Miss. 1996). The court
reasoned that the defense of accident was not available where the defendant
killed during the commission of an unlawful act (as suicide was a crime
at common law). Id. at 753; see also Thibodeaux v. State,
652 So. 2d 153, 173-74 (Miss. 1995) (holding accident instruction properly
refused where defendant claimed his gun accidentally discharged while he
was in the process of headlighting deer). Thibodeaux did not claim heat
of passion as a defense and the court reasoned, "The statute defining excusable
homicide does not extend to homicide committed in the course of an unlawful
act [headlighting deer] nor to homicide committed with a deadly weapon."
Thibodeaux,
652 So. 2d at 167 (alteration in original).

241. 240E.g.,
18 U.S.C. § 1111 (2000) ("[M]urder is the unlawful killing of a human
being with malice aforethought"); see United States v. Shaw, 701
F.2d 367, 392 n.20 (5th Cir. 1983) ("Malice does not require a subjective
intent to kill, but may be established by evidence of conduct which is
a `reckless and wanton and a gross deviation from a reasonable standard
of care, of such a nature that a jury is warranted in inferring that defendant
was aware of a serious risk of death or serious bodily harm.'") (quoting
United States v. Black Elk, 579 F.2d 49, 51 (8th

Cir. 1978)); see also United States v. Milton,
27 F.3d 203, 206-08 (6th Cir. 1994) (shooting into car established requisite
malice); United States v. Hinkle, 487 F.2d 1205, 1207 (D.C. Cir. 1973)
(proposing instruction defining malice as "a state of mind showing a heart
that is without regard for the life and safety of others").

244. 243See generally
Dressler, supra note 10, § 31.05[B], at 514 ("There is no common
law bright line between `negligence' and `recklessness,' and there is no
universally accepted common law definition of `recklessness.' Consequently,
the line between unjustified risk-taking that constitutes involuntary manslaughter
and that which constitutes murder has never been drawn with clarity.")
(footnotes omitted); Michaels, supra note 239, at 786 ("Despite
widespread agreement that certain unintended killings should be treated
as murder, states continue to struggle in search of a satisfactory means
of distinguishing such killings from manslaughter.").
See generally
Bernard E. Gegan, More Cases of Depraved Mind Murder: The Problem of
Mens Rea, 64 St. John's L. Rev. 429 (1990) (discussing New York cases);
Leo M. Romero, Unintentional Homicides Caused by Risk-Creating Conduct:
Problems in Distinguishing Between Depraved Mind Murder, Second Degree
Murder, Involuntary Manslaughter, and Noncriminal Homicide in New Mexico,
20 N.M. L. Rev. 55 (1990) (discussing New Mexico cases).

254. 253Id. §
210.2 cmt. 1, at 15. The drafters deployed authority tendentiously to avoid
confronting the fact that murder liability for unintended killings was
becoming controversial. They cited and quoted Commonwealth laws generously
but only mentioned in passing the prevailing European preference for intent.
Id.
cmt. 4, at 23-24. They also ignored English authority except for a Royal
Commission report in conflict with the law as written. Id. cmt.
4, at 25 n.51.

255. 254 Model Penal Code
§ 2.02(2)(c) (1985); cf.id. 2.02(2)(c) cmt. 3, at 236
("As the Code uses the term, recklessness involves conscious risk creation.
It resembles acting knowingly in that a state of awareness is involved,
but the awareness is of risk, that is of a probability less than substantial
certainty").

256. 255Id. §
210.2 cmt. 4, at 27-28 (1980).

257. 256Id. §
2.02(2)(c) (1985). The drafters had some difficulty in finding words to
describe how substantial and unjustifiable the risk needed to be. Seeid.
cmt. 3, at 237 n.15.

264. 263 This is not identified
as a purpose of criminal legislation by the code, cf.id.
§ 1.02, but may be implied by the references to differences between
serious and minor offenses, id. § 1.02(1)(e), and to the differentiation
among offenders "with a view to a just individualization in their treatment."
Id.
§ 1.02(2)(e).

265. 264 Miss. Code Ann.
§ 97-3-19(1)(b) (2000).

266. 265Id. Absence
of intent or premeditation was meant merely to distinguish the requirements
for depraved heart murder, corresponding to the category of implied malice,
from those under the preceding subsection, which originally required "premeditated
design." Seesupra note 109. It was not meant originally
to impose an element. Nevertheless, early authority construed the statute
not to apply to deliberate design killings. See infra note 281.

267. 266See Model
Jury Instructions, supra note 92, § 8:4. The subsequent "model"
instruction that creates a crime of murder for killing a victim while the
deceased rather than the accused "was committing an act extremely dangerous
to others and evidencing a depraved heart, regardless of human life; and
[w]ithout any premeditated design" is a misreading of section 97-3-19(b).
Id.
§ 8:5. There is no authority for the crime defined by the instruction,
and giving the instruction would be reversible error.

269. 268 These were the
fixed meanings of "eminently" by the eighteenth century. See 1 Oxford
English Dictionary 853 (compact ed. 1971). This source also gives as the
fifth meaning for "eminently": "Of peril, danger: Imminently, urgently,"
citing two seventeenth century sources that are ambiguous and may have
either meant eminently in its other meanings or may have misspelled it.
Id.
It also notes under the sixth meaning for "eminent" that "eminent" is confused
with "imminent" and, by implication, wrongly deployed to qualify "danger"
in two sources. Id.See generally Miss. Code Ann. §
1-3-65 (1998) ("All words and phrases contained in the statutes are used
according to their common and ordinary acceptation and meaning; but technical
words and phrases according to their technical meaning.").

270. 269 1 Oxford English
Dictionary 1380. This source also notes "imminent" is employed in error
for "eminent" and "immanent." Id.

271. 270 4 Blackstone,
supra
note 8, at *192. "[C]oolly discharging a gun among a multitude of people"
was, despite almost all current discussions, an example of
express
malice for Blackstone. Id. at *200. Blackstone's authority for the
latter is problematic. He cited Coke, supra note 8, at *57 (maintaining
without authority that it was murder for a person to throw a stone over
a wall intending to scare people coming from a sermon, "for he had an ill
intent, though that intent extended not to death").

272. 271 Black's Law Dictionary
752 (7th ed. 1999) (defining "imminently dangerous" as "reasonably certain
to place life and limb in peril"). This source has no entry for "eminently
dangerous." See also infra notes 493, 496 for a discussion of the
Florida and Oklahoma statutes.

278. 277 Burnett v. State,
46 So. 248, 249 (Miss. 1908). The facts in Burnett involved a fire
fight between two groups. Burnett, 46 So. at 249. The defendant
was accused of shooting through a window and killing the victim. Id.
He requested an instruction that "malice aforethought is a necessary element
in a charge for murder," and the court held that its omission was reversible
error. Id.

The short opinion is enigmatic. The defendant may have
been indicted for deliberate design murder, and the court may have reasoned
that a malice instruction was required in such a case, especially where
facts might have supported mitigation to manslaughter.

279. 278 Miss. Code Ann.
§ 99-7-37 (2000) ("[I]t shall be sufficient to charge in an indictment
for murder, that the defendant did feloniously, wilfully, and of his malice
aforethought, kill and murder the deceased."). The omission of this language
is not fatal, and an indictment for depraved heart murder in the language
of the statute is proper. Johnson v. State, 475 So. 2d 1136, 1138-39 (Miss.
1985).

282. 281 A jury instruction
in the language of the statute is not erroneous and need not require a
finding that the killing be done "with malice aforethought," "feloniously,"
or "willfully." Johnson, 475 So. 2d at 1140.

283. 282 There was considerable
older authority that extreme recklessness murder required the creation
of risk of death to persons other than the victim. Older cases held that
a defendant indicted for deliberate design killing could not be convicted
of depraved heart killing even where the proof was overwhelming. E.g.,
Gentry v. State, 45 So. 721, 722 (Miss. 1908) (holding that shooting into
wagon was case of depraved heart murder but reversing conviction where
killer was indicted for deliberate design killing), overruled by
Catchings v. State, 684 So. 2d 591 (Miss. 1996). See generallyWindham,
602 So. 2d at 802-03 (discussing history of doctrine). However, this doctrine
was eventually abandoned. See Fairman v. State, 513 So. 2d 910,
913-14 (Miss. 1987); Johnson, 475 So. 2d at 1139. In Windham,
two justices suggested returning to the old doctrine. Windham, 602
So. 2d at 804 (Hawkins, P.J., concurring); id. at 808-09 (Banks,
J., dissenting) (protesting that expansive view of depraved heart murder
threatened to absorb all voluntary manslaughter).

In dictum, the court once espoused the "general principle"
that where a defendant shoots into a crowd "with a spirit of malignity
and utter recklessness of human life" the resulting death is murder "because
of the recklessness and willfulness and malignity of the shooting generally."
Gentry v. State, 45 So. 721, 721 (Miss. 1908). But the court apparently
thought it was voicing an uncontroversial doctrine of black letter law
rather than defining the meaning of the terms of the statute.

305. 304 In Talbert
v. State, the court affirmed the murder conviction and capital sentence
of a defendant who shot his pistol once into a passing truck carrying twenty-one
African American men, wounding one and killing one. 159 So. 549, 550-51
(Miss. 1935). The court rejected his claims that the killing should be
held accidental. Talbert, 159 So. at 550-51. It further rejected
defendant's suggestion he could be guilty of no crime greater than manslaughter
because of an alleged insult to his wife, because this was contradicted
by the state's witnesses, creating a fact issue. Id. The court also
cited cases holding that the use of a deadly weapon raised a presumption
of malice. Id.

In Bass v. State, the defendant left a beer garden
after arguing with a man, returned with a pistol, and shot it once into
a crowd, killing the victim and wounding the man with whom he had been
arguing. 54 So. 2d 259, 260 (Miss. 1951). Tried for murder and manslaughter
but convicted of manslaughter, the defendant appealed the murder instruction.
Bass,
54 So. at 260. The court held that the instruction was proper (not just
harmless) and concluded that the evidence was sufficient to sustain a murder
conviction on a theory of depraved heart. Id. at 260-61 (referring
to Talbert).

In Wheeler v. State, a defendant caused a pistol
to fire several times while fighting with police over it. 536 So. 2d 1341,
1342 (Miss. 1988). In affirming the murder conviction, the court stated,
"[b]y seizing the officer's gun and firing it (according to the most generous
possible interpretation) recklessly and at random, Wheeler certainly engaged
in the type of conduct contemplated by § 97-3-19(1)(b)."
Wheeler,
536 So. 2d at 1344. A narrow majority reversed a capital murder conviction
on the ground that there was insufficient evidence that defendant knew
the victim was a peace officer. Id. at 1343-44; see also
Gentry v. State, 45 So. 721, 721 (Miss. 1908) (suggesting, in dictum, that
evidence of shooting into wagon was sufficient to support depraved heart
murder conviction but reversing where statute was not included in indictment).

314. 313Malone,
47 A.2d at 447. Malone testified that he had no intention of killing the
victim, with whom he was living at the time. Id. He claimed that
he armed the chamber to the right of the firing position and did not expect
it to fire. Id. The facts stated in the opinion may less readily
support a finding of extreme recklessness than those imputed to the case
by Joshua Dressler, who claims the defendant spun the firing chamber before
firing. Dressler, supra note 10, at 31.05[A][2], at 513 n.98; see
also People v. Roe, 542 N.E.2d 610, 612-14 (N.Y. 1989) (affirming depraved
indifference murder conviction for "police roulette" killing where defendant
pulled trigger, shooting victim); cf. Commonwealth v. Atencio, 189
N.E.2d 223, 224-25 (Mass. 1963) (affirming manslaughter conviction for
"Russian roulette" killing where victim pulled the trigger).

315. 314 The Model Penal
Code identified Malone as one example where the Code "would permit
a jury to reach the same conclusion." Model Penal Code § 210.2 cmt.
4, at 23 (1985). The drafters may not have appreciated that, if the defendant's
testimony was credible, he not only lacked intent to kill but also lacked
the awareness of risk required for recklessness.

316. 315 669 So. 2d at
85, 87 (Miss. 1996) (en banc).

317. 316Tait,
669 So. 2d at 87.

318. 317Id. at
91. Chief Justice Dan M. Lee concurred in the result only, id.,
while Justice McRae dissented from entry of the manslaughter conviction,
arguing that the entry of judgment exceeded the court's limited appellate
jurisdiction as conferred under the state constitution. Id. at 91-92
(McRae, J., dissenting).

319. 318Tait,
669 So. 2d at 90.

320. 319Id.

321. 320Id. at
87.

322. 321 547 So. 2d 29,
32 (Miss. 1989).

323. 322Blanks,
547 So. 2d at 31-32.

324. 323Id. at
33-34. The court in Blanks reversed the conviction because of the
admission of prejudicial evidence. Id. at 37.

325. 324Id. at
34. The court in Tait distinguished Blanks by evidence of
defendant's remorse. Tait, 669 So. 2d at 90. But guilt and remorse
led the defendant to admit the accidental shooting eleven days later in
Blanks,
547 So. 2d at 32. The psychological relevance of remorse is open to question.
See
generally Martha Grace Duncan, "So Young and So Tender": Remorseless
Children and the Expectations of the Law (2001) (unpublished manuscript,
on file with the Mississippi Law Journal).

326. 325Blanks,
547 So. 2d at 34.

327. 326Id. at
32.

328. 327 The court reversed
because of the admission of evidence that the defendant

had waved a gun around another person on another occasion.
Id.
at 37 (citing Miss. R. Evid. 404(b)). Because the defendant claimed the
shooting was an accident, the court did not persuasively explain why the
otherwise inadmissible evidence did not fall under the exception for "absence
of mistake or accident." See Miss. R. Evid. 404(b).

329. 328Tait,
669 So. 2d at 87.

330. 329 693 So. 2d 927,
933 (Miss. 1997). Justice Banks concurred in the result without opinion.
Clark,
693 So. 2d at 933. The court's lack of attention to precedent may be the
responsibility of counsel who failed to bring relevant authority to its
attention.

331. 330Id. at
929.

332. 331Id.

333. 332Id. The
opinion is inscrutable, but the case was apparently prosecuted and tried
on both deliberate design and depraved heart theories because the trial
court decided motions based on deliberate design and the supreme court
based its decision on depraved heart. Id. at 931.

349. 348 Fairman v. State,
513 So. 2d 910, 912, 914 (Miss. 1987). In one of the few opinions to address
intervening causation, the supreme court further held that alleged maltreatment
by physician did not relieve the defendant of liability.
Fairman,
513 So. 2d at 913 ("[T]he unlawful acts or omissions of an accused need
not be the sole cause of death. The test for responsibility is whether
the act of the accused contributed to the death, and, if it did, he is
not relieved of responsibility by the fact that other causes also contributed.")
(citing Holliday v. State, 418 So. 2d 69, 71 (Miss. 1982)).

356. 355Id. at
727 (Hawkins, C.J., concurring in part and dissenting in part) (joining
Chief Justice Hawkins were Justices Sullivan and Banks).

357. 356Id. at
727 (Smith, J., dissenting) (joining this opinion was Justice Roberts).
The dissenting opinion argues very convincingly that the plurality minimized
inculpatory evidence and draws on authority from other jurisdictions to
support murder liability. Id.

358. 357Id. at
724-25 (plurality opinion).

359. 358Id. at
725.

360. 359Id. at
726 ("The trial court properly gave instructions allowing the jury to find
[the defendant] guilty of manslaughter rather than murder."). The Chief
Justice's remark that he disagreed with the majority that manslaughter
instructions cannot be proper, must have referred to an earlier draft of
the opinion for the court. See id. at 727 (Hawkins, C.J., concurring
in part and dissenting in part).

365. 364Cf. 4
Blackstone, supra note 8, at *191 ("So where a person does an act,
lawful in itself, but in an unlawful manner, and without due caution and
circumspection: as when a workman flings down a stone or piece of timber
into the street, and kills a man; this may be either misadventure, manslaughter,
or murder, according to the circumstances under which the original act
was done . . . .").

366. 365 The evidence
is inconclusive, but a contemporaneous Missouri codification,

like Mississippi's modeled on the New York Penal Code,
added the phrase "which would be manslaughter at common law." Rice v. State,
8 Mo. 561, 563 (1844). Though the Missouri court construed this language
as providing an additional element, it might have been merely declarative
of the purpose of the manslaughter statute.

The most significant modification of the common law concerned
the defense of excuse allowed in barehanded killings in fights. These were
treated as manslaughter at common law. Seesupra notes 14,
79-81 and accompanying text.

374. 373See infra
note 406 and accompanying text (noting convictions have been sustained
even where defendants believed guns were unloaded); infra notes
375-78 and accompanying text (noting convictions have been sustained in
automobile cases where intoxication is coupled with reckless driving).
There likely would have been insufficient evidence for these convictions
under older authority. Cf. Gant, 244 So. 2d at 21 (quoting
McKinney,
18 So. 2d at 447 (Griffith, J., concurring)) (reversing manslaughter conviction
based on evidence defendant had whiskey bottle in car, was weaving one
hour before accident, and veered into victim's lane on curve, causing death).

377. 376 Sims v. State,
115 So. 217, 217-18 (Miss. 1928). The court conceded that the evidence
of nose powdering was not competent but did not think the case should be
reversed for that single error. Sims, 115 So. at 219. The contemporary
applicability of older cases can be problematic both because social standards
of risktaking have changed and because the standard for culpable negligence
was stated differently.

378. 377Id. at
219.

379. 378E.g.,
Campbell v. State, 285 So. 2d 891 (Miss. 1973). This is a logical inference
from Campbell, in which the court affirmed a manslaughter conviction
where the other driver in a race applied his brakes, swerving into an oncoming
vehicle, resulting in death to drivers in other cars on a theory that the
surviving driver "aided and abetted" the other driver's acts. Campbell,
285 So. 2d at 893, 895.

380. 379 The court's approach
evolved during the course of the last century. In an early vehicle homicide
case, it suggested that the habitual violation of speed laws or yield requirements
by many motorists did not prevent a motorist from being properly convicted
of manslaughter when a violation caused death. Wilson, 161 So. at
745. In later cases the court scrutinized evidence of recklessness demonstrating
indifference to human life. See Dickerson v. State, 441 So. 2d 536,
540 (Miss. 1983) (holding no evidence of culpable negligence where defendant
was intoxicated but there was no other evidence of unsafe driving where
victim's car was stopped in middle of road at night without lights and
where defendant saw car and tried to stop); Goudy v. State, 35 So. 2d 308,
309 (Miss. 1948) (passing to right not culpable negligence).

384. 383Id. at
688. The court was probably sensitive to the facts that the defendant,
a seventeen-year-old student, had received only three days training as
a school bus driver, and was substituting as a favor to the regular driver.
See
id. at 687.

388. 387Id. at
95 (citing Downs v. State, 41 So. 2d 19, 21 (Miss. 1949) (reversing manslaughter
conviction for vehicle fatality where prosecutor did not prove causal connection
between drinking and accident)); see Frazier v. State, 289 So. 2d
690, 692 (Miss. 1974) ("[Drinking] must create an abnormal mental and physical
condition which tends to deprive one of the clearness of intellect and
control of himself which he would otherwise possess.") (quoting Cutshall
v. State, 4 So. 2d 289, 292 (Miss. 1941)). The court concluded that in
the absence of drinking, the defendant would have been free from fault.
Evans,
562 So. 2d at 95.

For other opinions finding that negligence and intoxication
are not enough to establish culpable negligence, see Craig v. State,
520 So. 2d 487, 492-93 (Miss. 1988) and Gandy, 373 So. 2d at 1046.

389. 388Evans,
562 So. 2d at 97. The jury had also convicted of aggravated DUI, which
in 1990 was a lesser included offense in that the authorized punishment
was less serious than that for manslaughter. Id.; seesupra
notes 180-87 and accompanying text.

391. 390 Jones v. State,
442 So. 2d 919, 919, 921 (Miss. 1983). Evidence included the defendant's
admission that he struck the victim five or six times but also included
substantial circumstantial evidence that might have supported an inference
of a more sustained fight. Jones, 442 So. 2d at 919-20. The victim
died from brain injuries over one year later. Id. The defendant
was tried for murder, and the jury returned a manslaughter conviction as
a lesser included offense, apparently without any specific finding of culpable
negligence, and the supreme court affirmed, finding sufficient evidence.
Id.
at 921.

398. 397 Roberson v. State,
257 So. 2d 505, 507-08 (Miss. 1972) (affirming culpable negligence manslaughter
conviction where defendant shot at house, killing victim, regardless of
intent). In Roberson, the court suggested that the result was proper
both because there was sufficient evidence of culpable negligence and because
manslaughter was a lesser included offense of murder, for which there was
sufficient evidence. Roberson, 257 So. 2d at 508; cf. Gaddis
v. State, 42 So. 2d 724, 726 (Miss. 1949) (affirming murder conviction
but opining that manslaughter would be proper if defendant shot the victim
accidentally as claimed). The presumption of culpable negligence may be
enough to overcome the Weathersby rule. Seeinfra
note 402.

This result converges with the treatment of sufficiency
of evidence challenges in murder prosecutions where the jury returns a
verdict of manslaughter either on a theory of heat of passion or as a lesser
included offense. Ford v. State, 96-KA-01228-COA, ¶ 33, 734 So. 2d
343, 351 (Miss. Ct. App. 1999) (holding evidence sufficient to support
manslaughter conviction, without specifying theory, where defendant held
knife at time of fatal wounding and evidence was inconsistent with self
defense).

399. 398 Hancock v. State,
47 So. 2d 833, 840 (Miss. 1950).

400. 399 McCaffrey v.
State, 187 So. 740, 744-45 (Miss. 1939). The opinion in
McCaffrey
is difficult to read. The court's discussion of evidence indicates plainly
that there was credible evidence of use of some tool as a weapon, and possibly
a stomping on the victim's head. McCaffrey, 187 So. at 741-43. The
court observed, however, "[t]he jury could infer . . . the killing
[was] the unanticipated result flowing from the fight, in which fists and
feet were used, but no weapons." Id. at 744 (emphasis added). It
appears, however, that the court meant that while the jury
could
have so found, its verdict of manslaughter indicated that it did not so
find.

In Gregory v. State, the court affirmed a culpable
negligence manslaughter conviction where a husband believed he emptied
a handgun and handed it to his angry and intoxicated wife during an argument.
118 So. 906, 910 (Miss. 1928). She pointed the gun at her chest and pulled
the trigger twice, and he encouraged her to try again by stating, "You
can't kill yourself with an empty gun." Gregory, 118 So. at 908.
She responded by pulling the trigger a third time and the gun fired.
Id.
The court specifically found that the failure to verify that the chamber
was empty was culpable negligence under these circumstances. Id.
at 909. The authority of this case is problematic because the defendant
did not argue that the case was governed by the predecessor of Miss. Code.
Ann. § 97-2-49 (2000) (aiding suicide).

See also Crossley v. State, 420 So. 2d 1376, 1381
(Miss. 1982) (holding a handgun a deadly weapon even when not loaded or
capable of being fired).

The rule in these cases is good, but its application questionable.
Both opinions overlooked evidence and inferences that could support a finding
of extreme recklessness. In Phillips, the defendant was unloading
his loaded rifle while his girlfriend sat "on the arm of the couch directly
in front of the appellant." Phillips, 379 So. 2d at 319. When he
was pointing the rifle at the ceiling, she stood up into the line of fire.
Id.
In Latiker, the defendant pulled the gun from his pocket when it
fired. Latiker, 278 So. 2d at 398. Moreover, he fled after the accident
(or at least did not surrender himself for two days). Id. Flight
alone, like concealing a crime, should provide an inference of specific
intent, let alone culpable negligence. See Blanks v. State, 547
So. 2d 29 (Miss. 1989); supra notes 321-27 and accompanying text;
see
also Williams v. State, 667 So. 2d 15, 23 (Miss. 1996) (holding evidence
that defendant removed body from scene of shooting sufficient to support
manslaughter verdict over claim of self defense).

414. 413 An instruction
permitting a finding of culpable negligence from a violation of speed laws
is reversible error. Bailey v. State, 169 So. 765, 766-67 (Miss. 1936).
In
Cutshall v. State, the court recognized that drunk driving was
a misdemeanor but nevertheless emphasized that a resulting death was not
automatically

415. 414See Jabron
v. State, 159 So. 406, 407 (Miss. 1935) (holding evidence insufficient
to prove culpable negligence where defendant only gave child three swallows
of whisky and was unaware others had previously given child whisky that
cumulatively produced fatal alcohol poisoning). Though grounding its holding
in language of causation, noting the requirement that death result as the
natural and probable consequence of defendant's act, the court emphasized
both that the defendant did not know the child had access to other alcohol
and that there was no evidence that three swallows of whisky was likely
to be dangerous to the life of a six-year-old child. Jabron, 159
So. at 407.

417. 416Miller,
97-KA-00072-COA, ¶¶ 13-14, 733 So. 2d at 849-50. This interpretation
is apparently without precedent in the state's history. When New York interpreted
its killing-during-commission-of-misdemeanor statute (the model for Mississippi's)
as a misdemeanor manslaughter statute, it imposed manslaughter liability
for an assault without intent to kill. See Darry v. People, 10 N.Y.
120 (1854). Mississippi apparently never so broadly applied the statute.

418. 417 97-KA-01176-COA,
¶¶ 14-15, 726 So. 2d 251, 256 (Miss. Ct. App. 1998). The reasoning
in Towner would result in strict manslaughter liability for gunshot
deaths and eliminate any defense of accident in many common situations
where the unexcused, unjustified discharge of a weapon violated a municipal
ordinance

or other positive law.

419. 418 Miss. Code Ann.
§ 97-3-17(c) (2000) (stating excusable homicide applies to killings
during sudden combat where the defendant takes no undue advantage and neither
employs a dangerous weapon nor a cruel or unusual method). This excuse
treated unpremeditated barehanded killings during a fight differently from
similar killings with weapons (which were voluntary manslaughter). It thus
modified precisely the common law "unlawful act" doctrine relied on by
the court of appeals in Miller.

420. 419 Smith v. State,
20 So. 2d 701, 704 (Miss. 1945) (holding indifference as to consequences
requires indifference under circumstances involving danger to life). The
opaque opinion in McCaffrey v. State discussed the evidence in such
detail and then dwelt on the inferences of either a weapon or the intent
to inflict serious disabling injuries because a simple assault would not
have supported the manslaughter conviction under challenge. 187 So. 740
(Miss. 1939).

The commission of several unlawful acts (delinquency,
possession of cocaine) by themselves plainly did not satisfy the court's
standard of culpable negligence. But the court emphasized that additional
facts did support a finding of culpable negligence:

The jury could have reasonably found that [defendant parents]
were culpably negligent by failing to obtain prompt medical attention and
by not properly supervising their child which resulted in cocaine ingestion.
It is the presence of cocaine in an eleven-month-old child and not necessarily
the way in which it got there that evidences culpable negligence.Id.
at 710.

421. 420 Miss. Code Ann.
§ 97-3-21 ("Every person who shall be convicted of capital murder
shall be sentenced (a) to death; (b) to imprisonment for life in the State
Penitentiary without parole; or (c) to imprisonment for life in the State
Penitentiary with eligibility for parole as provided in Section 47-7-3(1)(f).").
See
generallyid. § 99-19-101 (discussing sentencing procedure
in capital cases).

422. 421Id. §
97-3-21 ("Every person who shall be convicted of murder shall be sentenced
by the court to imprisonment for life in the State Penitentiary.").

423. 422Id. §
97-3-25 ("Any person convicted of manslaughter shall be fined in a sum
not less than five hundred dollars, or imprisoned in the county jail not
more than one year, or both, or in the penitentiary not less than two years,
nor more than twenty years.").

437. 436 Juries have undoubtedly
also acquitted in accidental shooting cases finding the death accidental
and excusable. A model instruction liberally permits this defense, though
its statutory authority is problematic. See Model Jury Instructions,
supra
note 92, § 8:15 (directing finding of excusable homicide where jury
finds accidental shooting without intent to kill).

438. 437 More recent cases
explain the difference between the two is that depraved heart murder requires
a higher or more culpable form of risktaking or recklessness. Seeinfra
note 438. This was also true under older authority that explained that
murder differed from manslaughter only in that it required deliberation
(or malice aforethought), but manslaughter did not. See Carter v.
State, 25 So. 2d 470, 473 (Miss. 1946).

In Clayton, the supreme court reversed a conviction
of depraved heart murder where the jury was also instructed on culpable
negligence manslaughter but where the instruction defined culpable negligence
as requiring wilful acts. Clayton, 652 So. 2d at 724. The court
specifically held, "Where the objective is to distinguish culpable negligence
manslaughter from depraved heart murder the definition of culpable negligence
should be limited to the definition given by this Court in
Hurns[
v. State]." Id. at 726. The court's opinion did not address
the fact that

Hurns, notwithstanding a judicial definition of
culpable negligence, had actually held that requested culpable negligence
instructions were properly omitted. See Hurns v. State, 616 So.
2d 313, 321 (Miss. 1993). Accordingly, it is not clear whether the court
in Clayton meant to overrule the result in Hurns or to limit
it to its facts.

442. 441Clayton,
652 So. 2d at 726. This is consistent with the court's insistence that
deliberate design be carefully defined so as not to prevent a finding of
voluntary manslaughter. See Outlaw v. State, 1999-KA-00461-SCT,
¶¶ 14-15, 797 So. 2d 918, 921 (Miss. 2001).

445. 444 The Supreme Court
discussed the pressure to convict a wrongdoer of a more serious offense
in Beck v. Alabama, 447 U.S. 625, 637 (1980) (holding due process
requires lesser included offense instruction in prosecution for capital
crime to avoid risk of wrongful conviction from jury faced with all-or-nothing
choice); see also Keeble v. United States, 412 U.S. 205, 212-13
(1973) (reversing conviction of assault with intent to commit serious bodily
injury where jury was not instructed on lesser included offense of simple
assault).

447. 446 Whitehurst v.
State, 540 So. 2d 1319, 1326-27 (Miss. 1989) (discussing criteria for lesser
included offense instructions and holding their omission reversible error
under the circumstances). The statute there found to be a lesser included
offense was subsequently amended to provide for more serious punishment.
Seesupra
notes 179-87 and accompanying text.

478. 477 All killings
prohibited by Mississippi Code sections 97-3-27 ("while such other is engaged
in the perpetration of any felony, except those felonies enumerated"),
97-3-29 ("while such other is engaged in the perpetration of any crime
or misdemeanor not amounting to felony . . . where such killing would be
murder at common law"), and 97-3-33 ("while such human being is engaged
in the commission of a trespass or other injury to private rights or property")
require that the death occur as the result of the killer's "act, omission,
or culpable negligence" and are thus by their terms within the general
prohibition of section 97-3-47 (covering "[e]very other killing . . . by
the act, procurement, or culpable negligence of another"). Miss. Code Ann.
§§ 97-3-27, -29, -33, -47 (2000). The need for separate statutes
grew out of their classification in 1839 as different degrees of manslaughter,
punished differently. This disappeared in 1857. Seesupra
text accompanying note 120. They have become superfluous as the statute
originally drafted to cover residual kinds of killings has evolved into
a general involuntary manslaughter statute. Seesupra notes
193-95 and accompanying text. And they have tended either to fall into
desuetude or to resurface in the hands of clever defense counsel to the
confusion and embarrassment of the courts. Seesupra note
119 (discussing cases).

The statute punishing as manslaughter killings without
design by intoxicated persons practicing medicine, Miss. Code Ann. §
97-3-39, does not specify a culpable mental state but should not be assumed
to thereby impose strict liability. Given the age of the statute, its drafters
most likely understood it to require at least culpable negligence. The
legislature should either repeal the statute if it requires culpable negligence
or amend it to specifically provide for strict liability.

479. 478 Manslaughter
for "unnecessarily" killing a victim who was committing a felony or doing
an unlawful act has produced particular confusion. This statute (which
does not include language of "without malice") was probably designed to
mitigate deliberate design killings of wrongdoers from murder to manslaughter
when they occurred in the absence of circumstances constituting excusable
or justifiable homicide. The court has nevertheless held that the killing
of a wrongdoer with "malice" constitutes murder not manslaughter. See
Caldwell v. State, 381 So. 2d 591 (Miss. 1980) (reversing capital murder
conviction where trial court omitted defense theory that killing of police
officer during unlawful arrest should be mitigated to manslaughter); cf.
Bangren v. State, 17 So. 2d 599, 600 (Miss. 1944), overruled on other
grounds, Ferrell v. State, 97-KA-00941-SCT, 733 So. 2d 788 (Miss. 1999);
Walker v. State, 189 So. 804, 806 (Miss. 1939) (killing without malice
of person making improper arrest could not be murder).

The court's implicit requirement of lack of malice dispenses
with the need for this statute. It is hard to imagine any killing that
is not mitigated under the voluntary manslaughter statute, Miss. Code Ann.
§ 97-3-35, that deserves to be mitigated.

480. 479 The killings
by overloading boats for gain require either "wilfully or negligently"
receiving so many passengers and other elements. Miss. Code Ann. §
97-3-41. The statute concerning operators of steamboats and steam railroad
engines does prohibit certain acts that occur through "ignorance or gross
neglect," the scope of which is uncertain but may arguably be satisfied
by proof of something less than culpable negligence. Seeid.
§ 97-3-43.

But the application of these statutes is extremely limited.
Their mens rea element is problematic. And it is hard to imagine cases
prosecuted under them

that do not otherwise satisfy the current standard of
culpable negligence.

481. 480 The statute requires
proof both that the defendant knew the dangerous propensity of the animal
and willfully allowed it to run at large or kept it without ordinary care.
Id.
§ 97-3-45. These are higher culpability requirements than culpable
negligence. Nevertheless, the statute serves an important purpose by imposing
manslaughter liability for resulting deaths that might be difficult to
establish under normal causation requirements in the absence of the statute.

482. 481Id. §
97-3-37; seesupra notes 172-78 and accompanying text.

483. 482 Miss. Code Ann.
§ 97-3-35. The supreme court has altered the original understanding
of this statute in suggesting that it imposes alternative grounds for mitigating
murder to manslaughter--either lack of malice (which it identified with
"heat of passion") or dangerous weapon. See Lanier v. State, 684
So. 2d 93, 97 (Miss. 1996) (reversing capital murder conviction where defendant
claimed he unintentionally killed police officer victim while resisting
unlawful arrest). But see Johnson v. State, 416 So. 2d 383 (Miss.
1982) (holding trial court properly refused manslaughter instruction not
warranted by evidence and omitting deadly weapon requirement). While the
court in Lanier decided the appeal by construing the elements of
the voluntary manslaughter statute, the real issues were: 1) May a defendant
use force or deadly force to resist an unlawful arrest by a police officer,
and, if not, does the force or excessive force mitigate murder to manslaughter?
And 2) did the defendant have sufficient mens rea for murder in shooting
at victim? The court required an instruction permitting manslaughter for
imperfect self-defense. Lanier, 684 So. 2d at 93.

The existence of heat of passion negating "malice" should
be a matter for the jury once there is sufficient evidence from which a
factfinder may infer either deliberate design or depraved heart. See
Jordan v. State, 513 So. 2d 574, 575 (Miss. 1987) (affirming manslaughter
conviction of defendant who killed wife's lover); Rogers v. State, 76 So.
2d 702, 704 (Miss. 1955) (stating that grade of homicide should be left
to jury); Anderson v. State, 25 So. 2d 474, 476 (Miss. 1946) (leaving grade
of homicide to jury); cf. Windham v. State, 520 So. 2d 123, 126
(Miss. 1987) (holding deliberate design instruction conflicted with definition
of manslaughter as killing without malice in heat of passion). Likewise,
the adequacy of provocation should generally be left to the jury. See
Ruffin v. State, 444 So. 2d 839, 841 (Miss. 1984) (holding evidence of
defendant arguing with wife and in

agitated state before shooting her sufficient to support
manslaughter instruction). Legislation should prevent appellate courts
from finding that evidence of a hot-blooded intentional killing is insufficient
as a matter of law to support murder.
But cf. Rowland v. State,
35 So. 826, 827 (Miss. 1904) (reversing murder conviction on theory that
presence of adequate provocation prevented jury finding of deliberate design).

484. 483 The state relied
on this confusing language to support its murder conviction in Windham,
arguing that the omission of culpable negligence instructions was proper
because section 97-3-47 "specifically excludes homicides falling under
§ 97-3-19(1)(b)." Windham v. State, 602 So. 2d 798, 801 (Miss. 1992).
The court implicitly rejected the argument that depraved heart murder and
culpable negligence manslaughter are mutually exclusive. Windham,
602 So. 2d at 801. It insisted, on the contrary, that they differed only
in the degree of culpable recklessness. Id. The state's argument
would have similar undesirable consequences in cases involving drunk driving
deaths where the state should have the option of prosecuting for either
aggravated DUI, culpable negligence manslaughter, or depraved heart murder.

488. 487 For example,
depraved heart murder could be defined as requiring either an act (with
or without awareness) that created a high probability of death so as to
evidence a disregard for human life or an act creating a risk of death
accompanied by evidence of actual awareness of risk of death so as to evidence
a disregard for human life.